Tindungan v. Canada (Citizenship and Immigration)

Tindungan v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2013-02-01
Neutral citation
2013 FC 115
File numbers
IMM-5069-12
Notes
Reported Decision
Decision Content
Date: 20130201
Docket: IMM-5069-12
Citation: 2013 FC 115
Ottawa, Ontario, February 1, 2013
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
JULES GUINILING TINDUNGAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC­ 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 18 April 2012 (Decision), which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.
BACKGROUND
[2] The Applicant is a 25-year-old citizen of the United States. He is from Rialto, California and is a member of the United States Army. He served a 15-month deployment in Afghanistan with the 82nd Airborne Unit between 2007 and 2008.
[3] The Applicant left his unit in the U.S. Army in 2008 after completing his full deployment tour in Afghanistan. He left the unit after attempting to be released from his duties through official channels.
[4] While in Afghanistan, the Applicant developed moral objections to the actions, practices and procedures undertaken by the U.S. military. He witnessed and participated in things such as the torturing of detainees, violent house raids on civilian homes, indiscriminate and routine firing into populated civilian areas without taking any precautions to minimize civilian casualties, and the strapping of the bodies of dead insurgents to the front of U.S. military vehicles so as to parade them around towns and villages and intimidate the local civilian populations.
[5] The Applicant came to believe that these acts were illegal and in violation of the Geneva Convention. After completing his tour and returning to the United States, he learned that his unit would soon be redeploying and that the same tactics would be used. The Applicant felt such actions were morally wrong and against international law, and after unsuccessfully attempting to have himself reassigned from infantry duty through official channels, he went absent without leave from his unit.
[6] The Applicant came to Canada and claimed refugee protection. His hearings were held in June and December 2010. The RPD made its Decision on 18 April 2012 and notified the Applicant of the outcome on 10 May 2012.
DECISION UNDER REVIEW
[7] The RPD denied the Applicant’s claim because there is no a serious possibility that he would be persecuted if returned to the United States, and because adequate state protection exists there.
Review of the Applicant’s Claim
[8] The Applicant joined the U.S. Army on 4 August 2005. At that time, he did not know about the tactics used on the ground by the Army, and joined due to the financial situation of his family. He completed airborne training, and then went into the Ranger Indoctrination Program (RIP) to become part of the Rangers, which is an elite group within the Army. Once he entered RIP, he refused to take part in the harsh hazing rituals and so dropped out after two or three days.
[9] After leaving the RIP, he was assigned to his unit, the 82nd airborne, 4th Brigade Combat team, 4th squadron, 73rd Cavalry Regiment at Fort Bragg. He was deployed to Afghanistan in January, 2007 and ended his deployment in April, 2008. While there, he served at nine different military bases.
[10] The Applicant’s first position in Afghanistan was as an Indirect Fire Infantryman. He was involved in many firefights; two soldiers in his unit were killed and many were wounded, including himself.
[11] He was then transferred to a unit involved in active combat operations. Some of the incidents detailed by the Applicant as part of his unit’s operations included:
• Joint house raid missions with the Afghan National Army (ANA) that involved zip-tying the occupants, holding them at gunpoint, and destroying most of the contents of the house;
• The placement of detainees in shipping compartments known as “hot boxes” and leaving them there for indeterminate periods in extreme temperature conditions;
• The bombarding of large areas of land where there was no enemy with mortars, destroying villages, crops and property – the Applicant knew of at least one occasion where innocent civilians were killed;
• The placement of exposed bodies on the back of a trailer, which was then driven through towns to show the locals what happened to fighters;
• The employment of a technique known as “bracketing”, where mortars would be fired around a target until eventually it was hit – the Applicant learned that an innocent mother and child were killed using this technique;
• The refusal of a medic who had been called to treat enemy combatants to provide medical care, stating that he was going to let them die – the Applicant said that based on what he heard from another platoon, they all did die;
• The harassment and embarrassment of detainees, such as forcing a man to urinate outside and not allowing him to pray.
[12] The Applicant also described extreme “hazing” that he was made to endure while in the Army. This included “smoking sessions” where he had to low crawl in gravel rocks scratching his face and elbows, perform flutter kicks, push-ups, run on the spot, and other physical exercises.
[13] At one point, the Applicant suffered a foot injury and had a makeshift cast on his foot. During this time there was a rocket attack, and his sergeant ordered him to run around and check that everyone was accounted for because the sergeant had failed to check the radios and did not want to expose his mistake. The Applicant was forced to expose himself to the rocket attack.
[14] Once back in the U.S., the Applicant went to see a medic because he was depressed and having trouble going out, seeing people and sleeping. The medic discouraged him from pursuing any mental health treatment because the stigma would negatively impact his career.
[15] The Applicant tried various routes of removing himself from what was going on in Afghanistan. He said that he considered making a claim for conscientious objector status, but he knew that he would not qualify because he did not object to all fighting. He tried to apply for a non-combatant position, but learned he would have to be promoted to sergeant in order to become a civil affairs officer. He passed the exam with perfect marks but did not have enough promotion points when he returned from his deployment to be eligible.
[16] The Applicant then tried to obtain a transfer, but it was refused because of his specific job placement and experience. He told his captain that he wanted to leave the Army to become a teacher, but the captain made fun of him and wanted him to remain in the unit. The Applicant stated that he had no legitimate options that would allow him to get out of the infantry and avoid another deployment. At this point, he decided to desert the military.
[17] The Applicant left his post at Fort Bragg on 15 May 2008 and boarded a plane to Los Angeles. The Applicant said that during his time in the Army a roommate went AWOL, but then came back within 30 days. He was stripped of all rank and forced to do very difficult physical, pointless tasks such as piling heavy rocks or repeatedly cleaning things that were already clean. He was also ridiculed by his superiors. The Applicant came across the War Resisters Support Campaign on the internet and they helped him come to Canada. He arrived in Canada on 16 June 2008 and claimed refugee protection the same day.
[18] Since then, the Applicant has spoken publicly on a number of news outlets about his opinions on the U.S. military. He states that it is plainly on record that he is someone who is politically and morally opposed to the actions of the U.S. military, and he fears he will be persecuted by his unit if returned to the U.S.
State Protection
[19] The RPD considered whether there is a serious possibility that the Applicant would be persecuted if he returned to the U.S. or whether, on a balance of probabilities, he would be subjected personally to a risk to his life or to a risk of cruel and unusual treatment if he returned to the U.S.
[20] The Applicant alleged he would suffer “persecution” for desertion if he returns to the U.S. He said he will be targeted for differential prosecution because he has spoken out against the wars in Iraq and Afghanistan. He also says that he comes within sections 169 and 171 of the Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook), but that he would be unable to raise these sections in a court martial proceeding.
[21] The RPD found that there is adequate state protection in the U.S. Alternatively, it found that the military actions the Applicant objected to do not come within sections 169 and 171 of the UNHCR Handbook.
[22] The RPD cited much jurisprudence in assessing the issue of state protection. It reiterated that the Applicant had an onus to approach the state for protection, and that he bore the burden of proving, on a balance of probabilities, that state protection in the U.S. is not adequate. It stated that an important consideration is whether a legislative and procedural framework for protection exists, and whether the state is able and willing to implement that framework.
[23] The United States is a democracy, thus the RPD found a strong presumption of state protection. Refugee claims of U.S. military deserters have been considered by the RPD and it has been found that the U.S. is a developed democracy and there is adequate state protection. If returned to the U.S., claimants are prosecuted for military desertion under a neutral law of general application, and they have available to them a variety of legal safeguards and remedies. Any sentences a claimant may receive for desertion would not be persecutory, nor would punishment be disproportionately severe or amount to cruel and unusual punishment. Other problems that claimants may face in the U.S. as a result of their desertion would amount to discrimination and not persecution. Past RPD decisions to this effect have been upheld by the Federal Court of Appeal in Hinzman v Canada (Minister of Citizenship and Immigration); Hughey v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 [Hinzman].
[24] Christopher Marco Vassey, who served in the same unit as the Applicant and was in Afghanistan for some of the same period of time, also claimed refugee status. His refugee claim was judicially reviewed in Vassey v Canada (Minister of Citizenship and Immigration), 2011 FC 899 [Vassey]. The RPD considered this decision in analyzing the Applicant’s claim.
i) The U.S. Court Martial System
[25] The Applicant submitted that, based on the requirements set out by the Supreme Court of Canada in R v Généreux, [1992] 1 SCR 259 [Généreux], the U.S. military justice system does not meet the requirements for an independent and impartial tribunal. As a result of Généreux, changes were made to the Canadian military justice system. The RPD stated that a comparison to other countries is one aspect of the issue, but the relevant test is whether state protection in the U.S. is adequate.
[26] The expert opinions provided by the Applicant generally agreed that in the U.S. the military commander has a central role in the military justice system. The commander often initiates investigations, determines the charges, determines the level of court martial, adjudicates the case and selects the jurors who will hear the case. The experts, amongst other matters, examine how the U.S. military justice systems compares to the essential conditions of judicial independence set out in Généreux. They conclude that the U.S. system does not meet most of the conditions, and that there are problems in providing a fair trial for an accused.
[27] In his affidavit, Prof. Hansen acknowledges different checks and balances within the system to prevent unfairness towards an accused. He states that the most important protection is Article 37 of the Unified Code of Military Justice, which precludes any commander from censuring, reprimanding or admonishing any military member, military judge, or counsel with respect to the findings or sentence of a court or with respect to the function of the court. It also proscribes the exercise of unauthorized influence. In addition, military appellate courts have willingly entertained allegations of Unlawful Command Influence (UCI) in the appellate review process.
[28] Prof. Hansen also says that commanders exercise their functions with full and candid advice of military lawyers, and though not required to follow that advice, a commander disregards it at his peril. The commander selects the members of a court martial, but an accused at his sole discretion may elect to have his case decided by a military judge rather than a military panel. There is also an appellate system that serves as a significant check against the potential for UCI. There is the ability to appeal a case up to the Court of Appeals of the Armed Forces – which is made up of civilian judges – as well as the right to petition the Supreme Court for review of a decision of the Court of Appeals of the Armed Forces.
[29] The affidavit of Prof. Fidel states that the U.S. system does not satisfy the security of tenure criterion set forth in Généreux, nor does it satisfy the criterion of institutional independence. He states that the member selection process is not independent, but is a function of command. He says that despite the safeguards in place, complaints of UCI continue but that challenges on this basis are rarely successful. He concludes that, “If the statutory and regulatory protections were effective, UCI would not be the hardy perennial it is in the garden of American military justice.”
[30] Donald G. Rehkopf, Jr. provided an affidavit calling into question Prof. Hansen’s qualifications as an experienced practitioner in the U.S. military justice system. He says that while Prof. Hansen may be an academic instructor, this is “not the same experience as actually defending clients charged with desertion…” He says that the system lacks rudimentary fairness if a commander chooses to make an example of a soldier. The system is biased in favour of “discipline,” and commanders are allowed to evaluate the impact of conduct on their organization. This is a significant problem in the case of deserters.
[31] Based on his 34 years of experience with the military justice system, Mr. Rehkopf vehemently disagrees with the opinion of Prof. Hansen. He says that the core of the problem is that it is not always about justice, but about the desires and objectives of the military commander, which no military lawyer can overrule. He claims that the safeguards provided look good on paper, but there are no disciplinary sanctions instituted against a person responsible for a UCI. There are also problems with the commander choosing the members of the military who will hear the case, and the Court of Criminal Appeal is primarily staffed by military judges.
[32] The declarations of Marjorie Cohn and Kathleen Gilberd, who are authors of U.S. military law, state that military courts and appellate courts have an obligation to uphold the discipline and good order of their parent organization, so that matters of guilt and innocence, or severity and leniency, are thus weighed not only by considerations of law and justice, but also by their effect on the military’s smooth functioning, its discipline, morale and its mission. They state that this dual responsibility of military attorneys, judges and panel members affects the fairness of criminal cases, and that they have seen numerous cases where the needs of the service were afforded greater weight than the rights of the accused. They go on to discuss other problems, such as the role of the contravening authority and problems of UCI. They also do not believe that the institutional safeguards to prevent UCI are effective.
[33] The RPD points out that in Canada (Minister of Employment and Immigration) v Satiacum, [1989] FCJ No 505 [Satiacum], the Federal Court of Appeal stated that
In the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee hearing, as in an extradition hearing, Canadian tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a non-democratic 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….
[34] The Applicant submitted that all the experts, except Prof. Hansen, used Canadian and International Law as their measuring stick for what constitutes a fair system. Prof. Hansen states that the changes to the Canadian military justice system after the Supreme Court’s decision in Généreux may have failed to take into account the doctrine of command responsibility, which holds that a commander may be criminally liable for failing to prevent war crimes committed by those under his or her command.
[35] Prof. Hansen says that the U.S. military courts have chosen not to change their system in the same manner that the Canadian and British systems have been changed based on decisions out of their respected courts. The test is not whether another country’s system conforms to that of Canada, but whether the protection afforded by the system is adequate.
[36] The RPD stated that it preferred Prof. Hansen’s opinion to the others. He does not believe that the U.S. system must change just because changes have occurred in other countries, and he finds that based on the factors he considered, the U.S. system is still fair. There are different models for criminal justice systems, and just because a particular system does not conform to the Canadian or international model does not mean it is not fair.
[37] The RPD concluded that the U.S. military justice system would provide adequate protection to the Applicant.
ii) Risk of Differential Prosecution
[38] The Applicant submitted that he would be at risk of targeted prosecution because he has been outspoken about his political opinions on the U.S. military. He pointed to the decision in Rivera v Canada (Minister of Citizenship and Immigration), 2009 FC 814 [Rivera], at paragraph 101:
In addition, the whole state protection analysis needs to be reconsidered in the light of the stated risk, and supporting evidence, that the U.S. authorities will not neutrally apply a law of general application, but will target the Principal Applicant for prosecution and punishment solely because of her political opinion in a context where other deserters, who have not spoken out against the war in Iraq, have been dealt with by way of administrative discharge.
[39] The RPD stated that the Supreme Court of Canada has recognized discretion as an integral part of any justice system, and found that though there may not be a formal mechanism in the U.S. for review of discretion, this does not lead to a conclusion that, on a balance of probabilities, there is inadequate state protection in the United States.
iii) Section 171 of the UNHCR Handbook
[40] The Applicant said that he would be unable to argue in an American military proceeding that he refused to continue to serve because he did not want to take part in conduct falling under section 171 of the UNHCR Handbook. Further, motive is irrelevant in a charge of desertion, and the defence of unlawful order only applies to conduct that would be considered a crime or war crime.
[41] In her affidavit, Prof. Marjorie Cohn says that those charged with desertion are routinely disallowed from raising the defence of the illegality of the orders they received while on duty. Attorney Bridget Wilson agrees with this statement, as does David Gespass. The Applicant also referred to the cases involving Sergeant Camilo Mejia and Sergeant Kevin Benderman who were prevented from raising these types of defences. Applicant’s counsel also submitted that the above mentioned individuals were similarly-situated.
[42] Prof. Hansen also agreed that motive is an irrelevant consideration in a desertion case. He says that the “reasons for these limitations are obvious. No functioning military can allow its soldiers to pick and choose the conflicts that they agree with or they would choose to support…” He also says that this is not something unique to the U.S. military.
[43] The RPD pointed out that, in Canada, the offence of desertion sets out the intention as being the physical act of being absent. As in the U.S., defences would be available as to the physical act of being absent.
[44] Section 171 of the UNHCR Handbook states:
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.
[45] In the United Kingdom, the case of Krotov v Secretary of State for the Home Department, [2004] EWCA Civ 69 set out a three-part test in assessing a matter to which section 171 may apply. This decision was cited with approval in Hinzman. The RPD stated the test as follows:
(a) that the level and nature of the conflict, and the attitude of the relevant governmental authority towards it, has reached a position where combatants are or may be required on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community,
(b) that they will be punished for refusing to do so and
(c) that disapproval of such methods and fear of such punishment is the genuine reason motivating the refusal of an asylum seeker to serve in the relevant conflict, then it should find that a Convention ground has been established.
[46] The RPD said that the U.S. has dealt with serious violations of international humanitarian law, and individuals have been prosecuted because of it. It also stated that cases such as Hinzman and Popov v Canada (Minister of Employment and Immigration), [1994] FCJ No 489 (TD) at paragraph 10, establish that isolated incidents that violate international humanitarian law are an unfortunate, inevitable result of war. The RPD found that there was no evidence that the incidences put forward by the Applicant were systemic or condoned by the U.S., and thus did not come within section 171.
[47] The RPD found that the Applicant had failed to establish that the U.S. required or allowed its combatants to engage in widespread violation of humanitarian law, or that the U.S. would not allow him to raise a defence that the matter fell within section 171.
[48] The Applicant also submitted that a misuse of prosecutorial discretion may bring this matter under section 169 of the UNHCR Handbook, which says:
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.
[49] The Applicant submitted case law such as Rivera, above, in which U.S. prosecutions of deserters have targeted certain individuals for expressing their political opinions. The Applicant also put forward an example of one deserter who had done an interview with the CBC and who had been given a longer sentence than another deserter charged with the same serious criminal offences. The Applicant pointed out that he only had to show a seriously possibility of differential prosecution or persecution to come within section 169.
[50] The RPD noted many examples of sentences handed out, and found that there was no persuasive evidence that any of the individuals concerned publicly voiced objections to the war. It also stated that the standard of proof applicable to the demonstration of the facts underlying the Applicant’s claim is a balance of probabilities. It found that any differential sentences were not disproportionately severe so as to find, on a balance of probabilities, differential prosecution or punishment. It also found that any sentence the Applicant may receive would not be so disproportionately severe as to bring his claim within section 169.
[51] The RPD further found that any consequences the Applicant may suffer as a result of a criminal conviction may amount to discrimination, but not persecution. It also stated that if the Applicant suffers “hazing” upon his return, he will have a course of action, as cruel and unusual punishment is specifically prohibited by the U.S. Constitution. If he were to suffer hazing, the RPD found that he had not demonstrated the state protection would not reasonably be available to him. This position has been confirmed by the Federal Court.
Conclusion
[52] The RPD found that the U.S. is a strong democracy and there are avenues of appeal open to the Applicant. It found that the Applicant has not rebutted the presumption of state protection, or has not shown that there is a reasonable possibility he will be persecuted or that, on a balance of probabilities, he will be at risk to his life or a risk of cruel and unusual treatment or punishment or torture if he returns to the U.S. Therefore, the RPD rejected the Applicant’s claim.
ISSUES
[53] The Applicant raises the following issues in this proceeding:
a. Did the RPD err by finding that a judicial system which fails to meet basic internationally recognized fairness and due process requirements can nonetheless provide adequate protection?
b. In regards to state protection, did the RPD err by ignoring evidence that directly contradicted its findings?
c. Did the RPD err in law when interpreting both section 171 of the UNHCR Handbook and foreign law related to raising a defence in the U.S. court-martial system?
d. As regards differential punishment, did the RPD make unreasonable conclusions without regard to, and not supported by, the evidence?
STANDARD OF REVIEW
[54] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[55] The first two issues involve state protection. In Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, the Federal Court of Appeal held at paragraph 36 that the standard of review on a state protection finding is reasonableness. Justice Leonard Mandamin followed this approach in Lozada v Canada (Minister of Citizenship and Immigration), 2008 FC 397, at paragraph 17. Further, in Chaves v Canada (Minister of Citizenship and Immigration), 2005 FC 193, Justice Danièle Tremblay-Lamer held at paragraph 11 that the standard of review on a state protection finding is reasonableness. Reasonableness is the standard applicable to the first two issues.
[56] The interpretation of foreign law is a matter of fact (Canada (Minister of Citizenship and Immigration) v Saini (C.A.), 2001 FCA 311 at paragraph 26). In Vassey, above, Justice André Scott reviewed the RPD’s analysis of whether the applicant would be able to raise the defence of an illegal order on the standard of reasonableness.
[57] The interpretation of statutory provisions outside of the tribunal’s home statute is reviewable on a standard of correctness (Dunsmuir, above). In Key v Canada (Minister of Citizenship and Immigration), 2008 FC 838, Justice Robert Barnes found that the RPD’s interpretation of section 171 of the UNHCR Handbook was reviewable on a correctness standard. Based on the principles set out in Dunsmuir, the interpretation of the applicable sections of the UNHCR Handbook is reviewable on a correctness standard, but the application of those sections to the facts of the Applicant’s claim is reviewable on a reasonableness standard.
[58] The issue of differential punishment relates to whether the Applicant would suffer persecution upon returning to the U.S. The issue of the RPD’s interpretation of “persecution” is a question of mixed fact and law that involves a tribunal interpreting its enabling statute (see Sow v Canada (Minister of Citizenship and Immigration), 2011 FC 1313 at paragraphs 17-21). The Supreme Court of Canada stated in Smith v Alliance Pipeline Ltd., 2011 SCC 7 at paragraphs 26-34 that such a question is to be reviewed on a reasonableness standard. Further, the RPD’s persecution analysis goes to the interpretation of evidence. Therefore, the fourth issue is reviewable on a reasonableness standard (Alhayek v Canada (Minister of Citizenship and Immigration), 2012 FC 1126 at paragraph 49).
[59] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
STATUTORY PROVISIONS
[60] The following provisions of the Act are applicable in this case:
Application
3. (3) This Act is to be construed and applied in a manner that
(a) furthers the domestic and international interests of Canada;
(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
(e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and
(f) complies with international human rights instruments to which Canada is signatory.
Convention refugee
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
[…]
Person in Need of Protection
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning ­ of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care
[…]
Application
3. (3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet :
a) de promouvoir les intérêts du Canada sur les plans intérieur et international;
b) d’encourager la responsabilisation et la transparence par une meilleure connaissance des programmes d’immigration et de ceux pour les réfugiés;
c) de faciliter la coopération entre le gouvernement fédéral, les gouvernements provinciaux, les États étrangers, les organisations internationales et les organismes non gouvernementaux;
d) d’assurer que les décisions prises en vertu de la présente loi sont conformes à la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d’une part, d’égalité et de protection contre la discrimination et, d’autre part, d’égalité du français et de l’anglais à titre de langues officielles du Canada;
e) de soutenir l’engagement du gouvernement du Canada à favoriser l’épanouissement des minorités francophones et anglophones du Canada;
f) de se conformer aux instruments internationaux portant sur les droits de l’homme dont le Canada est signataire.
Définition de « réfugié »
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;
[…]
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
[…]
[61] Sections 169 and 171 of the UNHCR Handbook state as follows:
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.
…
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.
169. Un déserteur ou un insoumis peut donc être considéré comme un réfugié s'il peut démontrer qu'il se verrait infliger pour l'infraction militaire commise une peine d'une sévérité disproportionnée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un certain groupe social ou de ses opinions politiques. Il en irait de même si l'intéressé peut démontrer qu'il craint avec raison d'être persécuté pour ces motifs, indépendamment de la peine encourue pour désertion.
…
171. N'importe quelle conviction, aussi sincère soit-elle, ne peut justifier une demande de
reconnaissance du statut de réfugié après désertion ou après insoumission. Il ne suffit pas
qu'une personne soit en désaccord avec son gouvernement quant à la justification politique d'une action militaire particulière. Toutefois, lorsque le type d'action militaire auquel l'individu en question ne veut pas s'associer est condamné par la communauté internationale comme étant contraire aux règles de conduite les plus élémentaires, la peine prévue pour la désertion ou l'insoumission peut, compte tenu de toutes les autres exigences de la définition, être considérée en soi comme une persécution.
ARGUMENTS
The Applicant
[62] The Applicant points out that the circumstances of the present application are very similar to those in Vassey, above. In both cases, the decision-maker is the same, both applicants were members of the same unit in the 82nd Airborne Division, and similar evidence was presented by counsel in support of both claims for refugee protection. This Court granted Mr. Vassey’s application for judicial review, and the Applicant submits that many of the same errors were committed by the RPD in his case.
[63] The Applicant says that, as in Vassey, the RPD spent a considerable amount of time summarizing portions of the evidence that was before it. Also, as in Vassey, the RPD’s analysis falls short of being reasonable, and ignores evidence which directly contradicts its conclusions.
Section 171 of the UNHCR Handbook
[64] The Applicant submits that if a soldier will be punished for refusing to associate with breaches of the rules of armed conflict, then he is entitled to refugee protection according to section 171 of the UNHCR Handbook (Zolfagharkhani v Canada (Minister of Employment and Immigration), [1993] 3 FC 540 (CA) at paragraph 30).
[65] The Applicant put forward considerable evidence detailing condemned actions routinely committed by the U.S. military, including reports from credible sources and his testimony as to the personal experiences of himself and others. The RPD found that the U.S. did not require or allow its combatants to engage in widespread violations of humanitarian law, yet in coming to this conclusion it did not reference any of the hundreds of pages of documentary evidence indicating otherwise. The Applicant put forward significant evidence from credible third-party sources and absent any reference to this evidence in the reasons, the Applicant submits that the Decision cannot stand as reasonable.
[66] For example, the RPD’s finding that there were no routine breaches of the Geneva Convention directly contradicts the evidence pertaining