US War Deserters – Immigrating to Canada

In a decision that has received much media attention, the Federal Court of Appeal (“FCA“) on July 6, 2010, released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)

Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war”.  In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He has been AWOL from the US army since his arrival in Canada.  He originally claimed refugee status, a claim which was unsuccessful.

He then filed a Pre-Removal Risk Assessment (“PRRA“), and an application for permanent residence based on Humanitarian & Compassionate (“H&C“) grounds.

A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA.  She found that:

[t]he 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.

The appellant did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application.  The appellant sought leave to appeal of this decision.  The Federal Court upheld the Appellant’s decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an 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?

PRRA and H&C Applications Require Different Tests

The FCA answered the question in the affirmative. It is important to note that it did not rule that H&C would always be appropriate for war deserters, nor did it state that Mr. Hinzman’s H&C application should be successful. Rather, the FCA found that punishment for desertion, where the desertion was motivated by a deeply held moral, political and/or religious objection, could amount to unusual, undeserved, or disproportionate hardship. The Court thus remitted the matter to a different Officer with the requirement that the new officer reevaluate the application using this criteria.

This judgment is the latest in a series of decisions reminding Immigration Officers that PRRA and H&C applications require different tests.

The Immigration and Refugee Protection Act requires that PRRA officers give consideration to any new, credible, relevant, and material evidence of facts that might have affected the outcome of an appellant’s refugee claim hearing had this evidence been presented, and to assess the risk to the individual if removed.

H&C applications, meanwhile, require officers to regard public policy considerations and humanitarian grounds, including family-related interests.

The Officer did not appear to consider this, instead noting with regards to the H&C application that:

It is important to note that the possibility of prosecution for a law of general application is not, in and of itself, suffiicent evidence that an applicant will face unusual and undeserved, or disporporitionate hardship. The H&C application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

As the FCA noted, this standard of analysis is generally used for PRRA applications. It is not the test for H&C applications.

Once again, the FCA stressed that it was not altering the discretion of officers, nor that it was giving Mr. Hinzman a right to a particular outcome. Rather, it found that the  Officer had to apply the appropriate test.

Operational Bulletin 202

As a result of the Hinzman decision, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 202, which states:

This operational bulletin provides immigration officers in Canada with instructions on processing cases involving military deserters.

Background

Some individuals who may have deserted the military or who may have committed an offence equivalent to desertion of the military in their country of origin have sought refuge in Canada. Desertion is an offence in Canada under the National Defence Act (NDA). The maximum punishment for desertion under section 88 of the NDA is life imprisonment, if the person committed the offence on active service or under orders for active service. Consequently, persons who have deserted the military in their country of origin may be inadmissible to Canada under section 36(1)(b) or 36(1)(c) of the Immigration and Refugee Protection Act.

The current inventory of military deserter cases is comprised primarily of members of the United States armed forces who have claimed refugee protection in Canada. Desertion from the armed forces is described as an offence pursuant to section 85 of the United States Uniform Code of Military Justice.

Many of the persons in our current case inventory have had their refugee claims heard and have subsequently applied for permanent residence in Canada based on humanitarian and compassionate considerations. Some have also applied for permanent residence in Canada as members of the spouse or common-law partner in Canada class. Others have filed Pre-removal Risk Assessment (PRRA) applications when faced with removal from Canada. These applications are at various stages of processing either in the regions or at CPC-Vegreville.

All cases which have come to the attention of the Case Management Branch (CMB) have been identified in FOSS via a non-computer based entry.

General guidelines
Processing applications for permanent residence in Canada

Given the complexity of equating either a conviction for desertion or the commission of an act constituting an offence of desertion under a foreign law with an offence under an Act of Parliament (the National Defence Act), officers are instructed to contact their Regional Program Advisor (RPA) for guidance when processing applications for permanent residence in Canada made by military deserters. Officers are also instructed to copy the Case Review Division of the CMB on their initial communication with their RPA.

Processing claims for refugee protection in Canada

Notification of all new claims for refugee protection by military deserters and any updates to these refugee claims including PRRA applications must be provided to CMB using the existing guidelines on processing high profile, contentious and sensitive cases (OP 1, section 15).

CPC-Vegreville

In accordance with current instructions with respect to cases where a personal interview or an in-depth investigation may be required, CPC-Vegreville is asked to transfer applications filed by military deserters to the appropriate inland CIC for processing.

Through Access to Information Act requests we have also obtained what appear to be two internal directives to CIC officers that will be helpful to anyone with clients whose refugee claims are at least partially based on desertion.  They include research sources, factors that officers should consider, and possible interview questions.


Appealing IRPA Decisions to the Federal Court of Appeal

Generally, when the Federal Court makes a decision on an immigration matter, the decision is final. As most lawyers tell their clients at the outset, there is no right to appeal a Federal Court decision unless the Federal Court certifies an issue raised in the litigation as being a question of general importance. However, it is important that representatives be familiar with some exceptions to this rule.
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Functus Officio and Appealing to the Federal Court of Appeal

On June 10, 2010, the Federal Court of Appeal (“FCA“) issued its decision in Canada (Citizenship and Immigration) v. Arif, 2010 FCA 157.  The majority and concurring opinions discussed two procedural rules that will interest immigration practitioners  The first issue was when a Federal Court determination regarding a Citizenship Judge’s decision can be appealed. The second was the relationship between section 399(2) of the Federal Court Rules and the principle of functus officio.

When can a Federal Court Order Regarding a Citizenship Judge’s Opinion be Appealed to the Federal Court of Appeal?

Section 14 of the Citizenship Act regulates appeals from Citizenship judges. Subsections 5 and 6 provide that:

Appeal

(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which

(a) the citizenship judge approved the application under subsection (2); or

(b) notice was mailed or otherwise given under subsection (3) with respect to the application.

Decision final

(6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

Subsection six clearly states that the FCA is precluded from hearing appeals from Federal Court decisions pursuant to an appeal of a citizenship judge’s determination. But, does the FCA have jurisdiction to hear appeals from decisions of the Federal Court reconsidering, or refusing to reconsider, its decisions?

In answering this question, the Court applied the test that it articulated in Canada (Minister of Citizenship and Immigration) v. Saji, 2010 FCA 100.  There, the Court ruled that:

…, an appeal from the Federal Court to this Court is only precluded by subsection (6) as a decision made “pursuant to an appeal under subsection (5)” if the decision in question relates to the ultimate question, namely, whether the [C]itizenship [J]udge erred in approving or not approving a citizenship application, or in determining a question related to it.

Applying this test, the Federal Court of Appeal found that a decision not to reconsider the decision of a Citizenship Judge is a question that determines the ultimate question, and hence is not appealable.  Accordingly, the FCA found that it was without jurisdiction to hear the appeal.

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