Rivera v. Canada (Citizenship and Immigration)

Rivera v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2009-08-10
Neutral citation
2009 FC 814
File numbers
IMM-215-09
Decision Content
Federal Court
Cour fédérale
Date: 20090810
Docket: IMM-215-09
Citation: 2009 FC 814
Ottawa, Ontario, August 10, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
KIMBERLY ELAINE RIVERA
MARIO RIVERA
CHRISTIAN ALEXANDER RIVERA
REBECCA ANGELINA RIVERA
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72 (1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of a Pre-Removal Risk Assessment (PRRA) officer (Officer), dated December 8, 2008 (Decision) refusing the Applicants’ PRRA application.
BACKGROUND
[2] The Applicants are all citizens of the United States (U.S.).
[3] The Principal Applicant (Kimberly Rivera) graduated high school in 2001 and joined the U.S. Army Reserve in order to obtain funding for college. She was discharged from the Army Reserve in November 2001 after learning she was pregnant with her first child (Christian). By 2006, the Principal Applicant was married and had two children. She was working at Wal-Mart, but she and her husband (Mario) could not earn enough money to live and were forced to reside with her parents. After tensions developed with her parents, she decided to join the U.S. Army. She reported for duty with the Regular Army on March 1, 2006.
[4] After receiving Advanced Training at Aberdeen Proving Ground in Maryland, Kimberly qualified as a truck driver and arrived in Baghdad, Iraq on October 27, 2006. Shortly thereafter, she was harassed by her platoon sergeant after she had a fight with her husband on the telephone. She felt that the sergeant did not approve of her communicating with her husband.
[5] Kimberly was assigned to guard the front gate of a forward-operating base and it was her job to work with an Iraqi partner to ensure that no dangerous objects or devices made their way into the base. After her partner asked to leave the army because her sister had been hit by a mortar round, Kimberly began soul-searching and praying, and came to the conclusion that the U.S. military was careless about creating civilian casualties.
[6] During a telephone call with her husband, Kimberly learned that they had been contemplating the same Bible verse and she concluded that the war in Iraq was incompatible with the teachings of the Bible.
[7] Kimberly was scheduled to return to the U.S. on leave in January 2007. Her assistant platoon sergeant warned her that if she deserted she would be severely punished and would not be able to obtain employment. He said that she could go to prison or even be put to death.
[8] After Kimberly arrived back in the U.S. on a two-week leave, she began to research the possibility of applying for conscientious objector status, but thought that her application would not be accepted because she had volunteered for the military. She was convinced that the U.S. military would deploy her back to Iraq.
[9] In mid-February 2007, Kimberly and her family decided to leave for Canada. They entered Canada on February 18, 2007 and made claims for refugee protection.
[10] On October 26, 2007, the Immigration and Refugee Board (RPD) rendered a negative decision and an application for leave for judicial review of the negative decision was denied by the Federal Court on March 25, 2008.
[11] The Applicants subsequently filed both PRRA and H&C applications. The Applicants’ PRRA and H&C applications were both refused on December 8, 2008 by the PRRA officer and communicated to the Applicants in person on January 7, 2009.
[12] On March 12, 2009, it was determined that there was no serious issue with the H&C decision and Application for Leave and Judicial Review was dismissed. Leave was granted on the PRRA application for judicial review on April 21, 2009.
[13] The Applicants submit that, if returned to the U.S., they have a well-founded fear of persecution under section 96 of the Act and that there are serious grounds to believe that they would be exposed to a risk under section 97 of the Act. Kimberly believes that as a member of the U.S. Army, with her political opinion and public involvement against the war in Iraq, she will be charged with being Absent Without Leave (AWOL) or desertion, and subjected to a court-martial proceeding. She does not believe that she will receive a fair trial and will face disproportionate non-judicial punishment because of her opposition to the war in Iraq.
DECISION UNDER REVIEW
[14] The Officer did not consider documents that pre-dated the RPD decision or those that would have been available to the RPD where no explanation was provided as to why the documents could not have been presented. The rest of the evidence was accepted as new evidence. The Officer also noted that each piece of evidence would not be assessed and weighed individually, but that all the evidence that met the requirements of the Act had been considered. See: Ozdemir v. Canada (Minister of Citizenship and Immigration) 2001 FCA 331 at paragraph 9.
[15] The Officer noted that on March 31, 2007, the Federal Court released Hinzman v. Canada (Minister of Citizenship and Immigration) 2006 FC 420 and Hughey v. Canada (Minister of Citizenship and Immigration) 2006 FC 421 which dealt with U.S. military deserters who had sought refugee protection before the Immigration and Refugee Board (IRB). Those cases decided that the legality of the U.S. war in Iraq was not a relevant consideration. This position was upheld by the Federal Court of Appeal on April 30, 2007.
[16] The RPD had established that the determinative issue was state protection and that, although Kimberly disagreed with the U.S. war in Iraq and sought information from the internet, she “did not take any further steps to attempt to obtain conscientious objector status.” The RPD also concluded that “any punishment meted out to the claimant in the U.S. would be in accordance with the law of general application, after a court martial or other due process in which the claimant would be accorded the right to counsel and the advantage of open and transparent due process.”
[17] The RPD had concluded that “there are adequate procedural and legal safeguards within the U.S. military to protect the claimant, where her deeply held personal beliefs conflicted with U.S. government, or military policy. Her desertion, or refusal to serve, would have been, in all probability, dealt with through administrative means and furthermore there was adequate legal recourse and due process available to the claimant within her own country.” Kimberly had not “shown that exceptional circumstances exist which exempt her from seeking protection in her own state before seeking the surrogate protection of international refugee law.”
[18] The Officer noted that the PRRA application was substantively the same as the claim assessed by the RPD. She had not identified new risk developments in support of her application. The Officer found that the Principal Applicant’s past treatment, in and of itself, did not warrant a granting of protection, nor was it necessarily indicative of a forward-looking risk in light of the documentary evidence regarding country conditions and her personal circumstances.
Judicial Punishment
[19] The Officer notes that although Kimberly’s submissions and independent research indicate that the death penalty is a maximum punishment for desertion, her submissions specifically reference being imprisoned for desertion and the imposition of a harsher sentence than other deserters because of the high-profile nature of her case and her public speeches in opposition to the war in Iraq.
[20] The Officer, however, relies upon the Federal Court of Appeal in Hinzman v. Canada (Minister of Citizenship and Immigration), [2007] FCA 171 at paragraph 58:
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.
[21] While the Officer accepted that the percentage of soldiers who are AWOL from the U.S. military will differ throughout certain periods of time, he felt that the fact that the number varies does not show that any punishment Kimberly might receive would amount to persecution. The Officer found that the evidence did not support that the U.S. military has suspended or fundamentally altered any of its due process safeguards in the military justice system as a result of an increase in soldiers going AWOL. The Officer also stated that the affidavits and letters presented by the Applicants do not support that the United States is unable or unwilling to provide state protection to the Applicants, or that Kimberly would not receive due process in the military and/or civilian court system in the United States. The Officer again quoted the Federal Court of Appeal decision of Hinzman at paragraph 47 that “[a]lthough 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.”
[22] The Officer concluded that the possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant faces persecution or harm under section 96 and 97 of the Act. As well, the documentary evidence shows that Kimberly will be afforded due process and have access to state protection.
[23] The Officer also notes that Kimberly did not file a conscientious objector status application and that her explanation for not doing so was based on “speculation” and was not evidence that she would not meet the criteria for conscientious objector status under U.S. military law. The Officer concluded that “should the principal applicant decide not to file a conscientious objector application, the evidence before me demonstrates that she would still receive due process in the military justice system.”
Non-Judicial Punishment
[24] Kimberly submitted that she feared hazing, physical discipline and public ridicule by her military superiors for having gone AWOL from her unit, and that this non-judicial punishment would amount to persecution. Non-judicial punishment in the U.S. military is a form of discipline authorized by Article 15 of the Uniform Code of Military Justice (UCMJ). The Officer found that the “existence of the regulation, in and of itself, does not support that it will be applied towards the principal applicant in a manner that amounts to cruel and unusual treatment or punishment.” The Officer also commented that while Kimberly “indicates that she fears that she will suffer arbitrary and cruel and unusual punishment in the form of non-judicial punishment, submissions do not support that she has experienced such treatment in the past.” The affidavits of the experience of other officers was not “objective documentary evidence which supports that the principal applicant would be subjected to non-judicial punishment upon her return which would amount to cruel and unusual treatment or punishment as a result of her decision to speak out publicly.” The Officer concluded that the authority of military commanders to impose non-judicial punishment is “a law of general application under which the principal applicant would be afforded due process should it be inappropriately imposed.”
Conclusion
[25] The Officer concluded that if Kimberly were to seek state protection, she would be afforded such protection and that the onus was on her “to show that she ha[d] exhausted all avenues of redress available to her in her country of nationality.”
[26] The Officer concluded that state protection, while not perfect, was adequate. The Officer relied upon the Federal Court of Appeal decision in Hinzman at paragraph 46:
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…
[27] The Officer concluded that Kimberly had not established that, if returned to the U.S., she would be unable to access avenues of state protection, including the military and civilian justice systems. In addition, there were no substantial grounds to believe that the Applicants face torture, or reasonable grounds to believe they face a risk to life or cruel and unusual treatment or punishment.
ISSUES
[28] The Applicants raise the following issues for review:
a. Did the Officer misconstrue the risks put forward by the Applicants?
b. Did the Officer ignore evidence on the record?
c. Was the Officer’s finding that the Applicants had not rebutted the presumption of state protection unreasonable and made without regard to the evidence?
STATUTORY PROVISIONS
[29] The following provisions of the Act are applicable in these proceedings:
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
(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.
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.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
Consideration of application
113. Consideration of an application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;
(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
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;
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.
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.
Personne à protéger
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
Examen de la demande
113. Il est disposé de la demande comme il suit :
a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;
b) une audience peut être tenue si le ministre l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada.
STANDARD OF REVIEW
[30] Generally speaking, the issues raised by the Applicants require me to apply the standard of reasonableness. In Dunsmuir v. New Brunswick 2008 SCC 9, the Supreme Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards are theoretically different, “the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having multiple standards of review”: Dunsmuir at paragraph 44. Consequently, the Supreme Court of Canada held that the two reasonableness standards should be collapsed into a single form of “reasonableness” review.
[31] The Supreme Court of Canada in Dunsmuir also held that the standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the 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.
[32] Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and the previous jurisprudence of this Court, I find the standard of review applicable to the issues on this application to be reasonableness. 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”: Dunsmuir at paragraph 47. Put another way, the Court should only intervene 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.”
ARGUMENTS
The Applicants
Misconstruing the Risk of Differential Prosecution
[33] The Applicants submit that the Officer seriously misconstrued the risk of differential prosecution on the basis of political opinion put forward by the Applicants in their application. The Applicants note that the risk of differential prosecution on the basis of political opinion was a new risk that was not raised at or addressed by the RPD.
[34] The Applicants say that when the law is applied in a way that is not neutral vis-à-vis the grounds of Convention refugee status, which include political opinion, then that law is applied in a persecutory manner. This persecutory application of a law of general application can occur regardless of whether the intent of the punishment or sanction is persecution. The Applicants point out that they were not asserting that the U.S. should not punish deserters, but that punishing deserters differentially for their political opinion amounts to persecution. See: Chan v. Canada (Minister of Employment and Immigration), [1995] S.C.J. No. 78; Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (F.C.A.); Samhat v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1530 (F.C.) and Djebli v. Canada (Minister of Citizenship and Immigration) 2007 F.C.J. No. 1024 (F.C.).
[35] The Applicants cite the United Nations Refugee Agency (UNHCR) Handbook at section 169:
A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately sever punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion.
[36] The Applicants submit that the Officer does not address the decision to prosecute deserters based on the improper consideration of the deserter’s political opinion. The Officer simply addresses the variance in judicial sentences imposed after a deserter is selected for prosecution and court-martialed. The Officer does not address the primary thrust of the risk of differential prosecution. If persons are selected for prosecution on the basis of their political opinion, this would arguably be in violation of the principles of natural justice and contrary to accepted standards.
[37] The Applicants also note that differential prosecution on the basis of political opinion was not considered by the Federal Court or the Federal Court of Appeal in the Hinzman decisions. The Hinzman decisions considered “whether any punishment for refusing to serve in an ‘illegal war’ would be inherently persecutory.” Therefore, the Officer’s assessment of the evidence in the Applicants’ PRRA and the analysis of available state protection in the U.S., demonstrates that the Officer did not appreciate that the risk of differential punishment comes from being selected for prosecution in the first place on the basis of political opinion.
[38] The Officer also failed to appreciate that there were affidavits which demonstrated that soldiers are being selected for court-martial and are court marshalled because of their political opinion. The Officer mistakenly found that a court-martial proceeding is itself “due process” and state protection. The Applicants say that the very fact that Kimberly would be subject to prosecution and a hearing is a differential and persecutory application of the law based on her political opinion. The existence of procedural safeguards that exist within the hearing process would not alleviate or protect her against the persecution of being subjected to the proceeding itself. This persecution comes from the fact of being prosecuted for her political opinions and not from the manner in which the prosecution is carried out.
[39] The Applicants propose that the key question to answer on the risk of differential prosecution is “In what circumstances does the military prosecute deserters?” The Applicants say that the Officer did not answer this question and failed to understand that the risk of differential punishment put forward by the Applicants was also the risk of a harsher sentence. The Officer failed to appreciate that the risk of differential and more severe punishment stems from the decision on whether or not to prosecute in the first place.
[40] The Applicants contend that the Officer seriously misconstrued the nature of the risk of differential punishment and, in so doing, effectively failed to reasonably assess a primary risk put forward by the Applicants in their application.
[41] The Applicants conclude on this issue by submitting that the Officer’s Decision is unreasonable and “misconstrues and therefore fails to properly address the risk of differential prosecution raised by the Applicants in their application.”
Misconstruing Risk Fatal to State Protection Finding
[42] The Applicants also submit that it is important to properly characterize the alleged risks in a given application before conducting a state protection analysis; otherwise, the decision-maker risks short-circuiting a full assessment of the claim. See: Lopez v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 1733 at paragraph 21 and Medina v. Canada (Minister of Citizenship and Immigration) 2008 FC 728 at paragraphs 15-16.
[43] The Applicants note that an analysis of state protection cannot simply involve general statements pertaining to legislative and procedural mechanisms within a given country, but must actually have some bearing on the risks raised in an application. See: Garcia v. Canada (Minister of Citizenship and Immigration) 2007 FC 79 and Villalva v. Canada (Minister of Citizenship and Immigration) 2008 FC 314.
[44] The Officer discusses due process guarantees that would not protect Kimberly from being selected for prosecution based on her political opinions. Access to civilian and/or military counsel, the right to a recorded hearing, the right to present evidence in one’s defence and the right to appeal a court-martial sentence, do not protect from the discriminatory exercise of prosecutorial discretion on the basis of political opinion. The Officer lists general protections available in the military justice system, but does not discuss protections from the risk of differential prosecution raised by the Applicants.
[45] The Applicants conclude on this issue by stating that the Officer’s Decision is unreasonable as it misconstrues and fails to assess a primary risk raised by the Applicants. The failure of the Officer to properly address the risk of differential prosecution and punishment is fatal to the Officer’s determinative conclusion that state protection would be available to the Applicants in the U.S. because there is no finding on whether state protection would exist against being targeted for prosecution in the first place.
Ignoring Evidence on the Risk of Differential Prosecution
[46] The Applicants further submit that, in addition to misconstruing the risk of differential prosecution, the Officer ignored material evidence on the record before him concerning that risk. A decision-maker must make reference to, and provide analysis of, important evidence that directly contradicts the findings made. This duty increases the more the evidence is relevant to the disputed finding. The failure of a decision-maker to provide any assessment of the contradictory evidence renders a decision unreasonable. See: Hassaballa v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 658 (F.C.) at paragraphs 23-26; Nyoka v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 720 (F.C.) at paragraph 21; Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) and Ranji v. Canada (Minister of Public Safety and Emergency Preparedness), [2008] F.C.J. No. 675 (F.C.).
[47] Despite the Officer’s general reference to the evidence, and specific reference to two of the documents relating to prosecution and imprisonment of similarly situated individuals by the U.S. military, he does not engage in any meaningful way with the other multiple pieces of evidence demonstrating differential prosecution initiated against those who have publicly opposed the war in Iraq, particularly the information concerning the court-martials of James Burmeister, Robin Long and Lt. Watada.
[48] The Applicants point out that the evidence before the Officer dealing with James Burmeister, Robin Long and Lt. Watada directly and strongly contradicts the findings that Kimberly would not be subjected to differential prosecution based on her political opinion. The evidence demonstrates that the U.S. military does select persons for prosecution based on the public expression of their political opinions and, in some cases, has openly argued in court martial proceedings that those public opinions should be aggravating factors. The Officer ignored these pieces of evidence.
[49] The Applicants also submit that the Officer does not directly mention the affidavit of Stephen Funk or the letter from Monica Bendermen, and so overlooked or failed to reference the portions of these documents that directly contradict the Officer’s findings on differential punishment.
[50] The Applicants submit that the Officer ignored multiple pieces of evidence before him that directly contradict his finding that Kimberly would not be subjected to differential punishment. This renders the Decision unreasonable.
State Protection Findings Unreasonable: Conscientious Objector Status
[51] On this issue, the Applicants submit that the Officer’s finding that they had not rebutted the presumption of adequate state protection was made without regard to the evidence before him. The Officer’s conclusion that Kimberly could access the protection of a conscientious objector status application is unreasonable.
[52] The fact that Kimberly is not prohibited from filing a conscientious objector application does not mean that doing so will afford her protection from the risks raised in her application. See: Key v. Canada (Minister of Citizenship and Immigration) 2008 FC 838; Garcia v. Canada (Minister of Citizenship and Immigration) 2007 FC 79 and Villalva.
[53] The Applicants rely upon Eler v. Canada (Minister of Citizenship and Immigration) 2008 FC 334 at paragraph 8:
8 Where the Board relies upon the existence of certain legislation to provide protection, but the evidence before the Board is to the effect that the legislation has no application to the claim before it, the Board's reasons are not reasonable as they are insufficiently justified.
[54] The Applicants say that the Officer’s conclusion that Kimberly had open to her the protection of conscientious objector status was unreasonable given the multiple pieces of evidence before the Officer demonstrating that applying for this status would not in any way protect her from the risks raised in the application. Applying for conscientious objector status would, in fact, exacerbate Kimberly’s risks.
[55] While the Officer makes a brief reference to the affidavit of Eric Seitz, an expert in U.S. military law, he does not acknowledge that evidence when discussing conscientious objector status applications. Based on Eric Seitz affidavit, persons who file conscientious objector status applications are not protected from judicial punishment but are “subjected to severe punishments including lengthy periods of incarceration,” and both the military and civilian communities subject conscientious objectors to “persecution, punishment, vindictiveness, and intimidation.” The Officer provides no reasons for his conclusion that, despite expert evidence to the contrary, applying for conscientious objector status would offer Kimberly protection, or why he dismisses expert evidence that directly contradicts his conclusion on this point.
[56] There was evidence of individuals who had filed conscientious objector status applications and who were provided no protection from risks similar to those raised in the Applicants’ application. One of these individuals was deployed and re-deployed to combat zones despite pending conscientious objector status applications, which demonstrates that their risk was increased.
[57] The Applicants cite an Amnesty International Letter dated June 18, 2008 that was before the Officer:
Some US military personnel who have refused to deploy to Iraq or Afghanistan due to their conscientious objection to US policy and practice in the “war on terror” have been imprisoned solely for their beliefs. Amnesty International has considered some to be prisoners of conscience who should be released immediately and unconditionally. Some of these conscientious objectors have been court-martialed and sentenced despite pending applications for conscientious objector status, others were imprisoned after their applications were turned down on the basis that they were objecting to particular wars rather than to war in general.
[58] The Applicants say that the evidence on the record before the Officer shows that if Kimberly filed an application for conscientious objector status, the application would offer no protection from the risks raised in the Applicants’ application, and might in fact exacerbate those risks. Ignoring relevant evidence on this issue renders the Decision unreasonable because it does not meet the test of “justification, transparency and intelligibility” found in Dunsmuir at paragraph 47.
[59] The Applicants conclude that the Officer seriously misconstrued a primary risk put forward by the Applicants and failed to conduct an analysis of state protection that actually applies to the risks raised by the Applicants in their application. The Officer ignored multiple pieces of evidence before him that directly contradicted his primary findings and cited domestic avenues of protection that would not provide any protection from the risks the Applicants have asserted. In light of these errors, the Decision is unreasonable and should be remitted back to a different Officer for redetermination.
Respondents
The Applicants did not claim that being court martialed constitutes punishment
[60] The Respondent submits that the Applicants are claiming that the Officer erred because she mistakenly understood the risk of “differential punishment” put forward by the Applicants as involving a harsher sentence rather than being selected for court martial. The Applicants use the terms “differential punishment” and “differential prosecution” interchangeably and “differential prosecution” was not used in the submissions of the Officer. The Respondent notes that the “normal definition of punishment does not include being subject to a legal proceeding; it only encompasses the sanctions imposed during the sentencing stage of a legal proceeding. The Respondent relies on R. v. Rodgers 2006 SCC 15 at paragraph 62 which states that “in its ordinary sense, ‘punishment’ refers to the arsenal of sanctions to which an accused may be liable upon conviction for a particular offence.” The Respondent says that the Applicants never requested that the Officer give the word punishment an alternative meaning, so the Officer was bound to interpret the language in their submissions according to its plain and ordinary meaning.
[61] The Respondent also submits that the Applicants never explicitly claimed that a court martial itself would constitute punishment. The Officer cannot be faulted because she evaluated the risk the Applicants claimed they would suffer. The Respondent highlights the submissions of the Applicants to the Officer:
· That any additional incarceration that Ms. Rivera receives because of her political and religious opinion, be it even one additional day constitutes the application of law of general application in a persecutory manner;
· The evidence presented in support of Ms. Rivera’s case clearly indicates that those who speak out publicly against the war are specifically punished for their involvement with the media, when their sentences are decided in court martial proceedings, resulting in them receiving longer prison sentences;
· Mr. Mejia outlines at paragraph 14 of his affidavit that he was given the maximum sentence allowed by a special court martial for desertion;
· Kevin Benderman, who did not go AWOL and who was sentences to 15 months imprisonment, loss of all pay and allowances, loss of rank and dishonourable discharge;
· Despite having voluntarily turned himself into the military control, Ivan was sentenced to 8 months in a Marine prison and given a bad conduct discharge.
[62] The Respondent notes that in the Applicants’ submissions, there is “but one vague reference to the possibility that the Principal Applicant may be improperly selected for prosecution.” This reference was not in the section of submissions that described how the laws of general application were applied regarding war deserters, but was buried in the Applicants’ discussion of the personal experience of Robin Long and did not claim that being selected for prosecution constituted punishment. The Respondent also notes that “no evidence was provided to demonstrate that individuals who publicly spoke out against the war were disproportionately prosecuted.”
[63] The Respondent notes that, in the Applicants’ materials, there are statistics that illustrate that only 6% of deserters are court marshalled. However, the Applicants claim that the Officer failed to determine whether the 6% consisted of individuals who spoke out against the war. The Respondent contends that the Officer was never asked to determine this and that the Applicants did not provide evidence to support this claim. The evidence provided mainly consisted of affidavits from a number of specific individuals who spoke out against the war and were court marshalled, documenting their personal circumstances. In order to establish a differential prosecution claim the Applicants would have had to indicate what portion of the 6% spoke out against the war and what portion did not. This was never done.
[64] The Respondent submits that the Officer specifically noted that no charge may be referred to a general court martial for trial until a thorough and impartial investigation of all the matters has been made and that an accused has a right to be represented by counsel during the investigation. After considering the Applicants’ evidence, the Officer concluded that it did not indicate that the UCMJ will be applied in a disproportionately harsh manner against Kimberly. The Officer’s conclusions clearly go beyon