Being a war deserter does not in of itself mean that either a refugee claim or an application for permanent residency based on humanitarian & compassionate (“H&C“) grounds will succeed.
Hinzman
On July 6, 2010,the Federal Court of Appeal (the “FCA“) 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 was AWOL from the US army since his arrival in Canada. He originally claimed refugee status, a claim which was unsuccessful.
Mr. Hinzman then filed a Pre-Removal Risk Assessment (“PRRA“) and an application for permanent residence based on 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.
Mr. Hinzman did not seek leave to apply for judicial review of the PRRA decision.
The Officer also rejected the H&C application. Mr. Hinzman 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?
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.Canada’s 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.
Operational Bulletin 202 – War Deserters
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 CanadaGiven 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.
In 2016, Immigration, Refugees and Citizenship Canada removed the reference to the United States from OB 202.
Refugee Cases
In Kirkoyan v. Canada (Citizenship and Immigration), 2011 FC 1217, an Israeli refused to serve as a reservist in the Israeli Defense Forces. In analyzing whether the Immigration and Refugee Board applied the correct law on the issue of whether a country’s punishment for desertion can constitute persecution, the Court reiterated the three categories of desertion that qualify for refugee status as follows:
- Where the desertion pertains to conscription for a legitimate and lawful purpose that is conducted in a discriminatory way, or if the punishment for desertion is based in relation to a Convention ground.
- Where the evasion reflects an implied political opinion that the military service is fundamentally illegitimate under international law (i.e. – where it is intended to violate basic human rights, non-defensive incursions into foreign territory, or action in breach of the Geneva Convention. To rely on this category, it is necessary to show that, on a balance of probabilities, the claimant would have been required to carry out the activities. (Ozunal v Canada (Minister of Citizenship and Immigration)
- Principled objections, or conscientious objectors.
For a deserter to show that he is a genuine conscientious objector, he bears the onus to demonstrate that his opinions in that regard are genuine. The Court noted that:
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.
Finally, the Court summarized UNHCR guidance as follows:
167. In countries where military service is compulsory, failure to perform this duty is frequently punishable by law. Moreover, whether military service is compulsory or not, desertion is invariably considered a criminal offence. The Penalties may vary from country to country, and are not normally regarded as persecution. Fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution under the definition. Desertion or draft-evasion does not, on the other hand, exclude a person from being a refugee, and a person may be a refugee in addition to being a deserter or draft-evader.
168. A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.
169. A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion.
170. There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.
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.
172. Refusal to perform military service may also be based on religious convictions. If an applicant is able to show that his religious convictions are genuine, and that such convictions are not taken into account by the authorities of his country in requiring him to perform military service, he may be able to establish a claim to refugee status. Such a claim would, of course, be supported by any additional indications that the applicant or his family may have encountered difficulties due to their religious convictions.
173. The question as to whether objection to performing military service for reasons of conscience can give rise to a valid claim to refugee status should also be considered in the light of more recent developments in this field. An increasing number of States have introduced legislation or administrative regulations whereby persons who can invoke genuine reasons of conscience are exempted from military service, either entirely or subject to their performing alternative (i.e. civilian) service. The introduction of such legislation or administrative regulations has also been the subject of recommendations by international agencies.24 In the light of these developments, it would be open to Contracting States, to grant refugee status to persons who object to performing military service for genuine reasons of conscience.
174. The genuineness of a person’s political, religious or moral convictions, or of his reasons of conscience for objecting to performing military service, will of course need to be established by a thorough investigation of his personality and background. The fact that he may have manifested his views prior to being called to arms, or that he may already have encountered difficulties with the authorities because of his convictions, are relevant considerations. Whether he has been drafted into compulsory service or joined the army as a volunteer may also be indicative of the genuineness of his convictions.
However, as the Federal Court noted in Goltsberg v. Canada (Citizenship and Immigration), 2010 FC 886, where an individual completes military assignments, or fails to contact relevant military committees to obtain exemptions from specific assignments, a claim will be difficult to establish.
Deserting Alone Isn’t Sufficient
Opposition to military service is not sufficient to obtain refugee status. A serious possibility of persecution stemming from deserters must be demonstrated. As the Federal Court of Appeal found in Ates v Canada (Minister of Citizenship and Immigration), 2005 FCA 322), general imprisonment does not constitute persecution in the case of deserters. In such a situation, the Applicant needed to demonstrate to the Board that the sentence awaiting him would amount to persecution.
Through Access to Information Act requests we have also obtained what appear to be two internal directives to IRCC officers that will be helpful to anyone with clients whose H&C grounds are at least partially based on desertion. They include research sources, factors that officers should consider, and possible interview questions.
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