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Hinzman V MCI 2007 FCA

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Hinzman V MCI 2007 FCA Date: 20070430 Dockets: A-182-06 A-185-06 Citation: 2007 FCA 171 CORAM: DÉCARY J.A. SEXTON J.A. EVANS J.A. Docket: A-182-06 BETWEEN: JEREMY HINZMAN (A.K.A. JEREMY DEAN HINZMAN) LIAM LIEAM NGUYEN HINZMAN (A.K.A. LIAM LIEM NGUYE HINZMAN) AND NGA THI NGUYEN Appellants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent Docket: A-185-06 BETWEEN: BRANDON DAVID HUGHEY Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent Heard at Toronto, Ontario, on March 19, 2007. Judgment delivered at Ottawa, Ontario, on April 30, 2007. REASONS FOR JUDGMENT BY: SEXTON J.A. CONCURRED IN BY: DÉCARY J.A. EVANS J.A. REASONS FOR JUDGMENT SEXTON J.A. INTRODUCTION [1] Jeremy Hinzman and Brandon Hughey voluntarily enlisted to serve in the United States military. During their time in the military, they developed an objection to the war in Iraq, resulting in their belief that it is illegal and immoral. After learning that their units would be deployed to Iraq, they deserted the military and came to Canada, where they made claims for refugee status. [2] The Refugee Protection Division of the Immigration and Refugee Board (the “Board”) considered the claims of Mr. Hinzman and Mr. Hughey (collectively referred to in these Reasons as the “appellants”) for refugee status and held that the appellants are not Convention refugees or persons in need of protection, as set out in the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA”). The Board therefore concluded that the appellants are not entitled to stay in Canada as refugees. [3] In the Federal Court, Mactavish J. dismissed applications for judicial review by the appellants and certified a question which appears later in these Reasons (Hinzman v. Canada (Minister of Citizenship and Immigration) , 2006 FC 420, Hughey v. Canada (Minister of Citizenship and Immigration) , 2006 FC 421). [4] The appellants now appeal to this Court. However, for the reasons that follow, I see no reason to depart from the conclusions of the Board and Mactavish J. that the appellants are not entitled to refugee status. Accordingly, I would dismiss the appeals. [5] These Reasons are given in respect of both appeals (A-182-06 and A-185-06). A copy will be placed in the file of each appeal. FACTS IN THE HINZMAN APPEAL [6] In late 2000, Jeremy Hinzman enlisted for a four-year term in the U.S. Army. Mr. Hinzman’s decision to join the military was motivated both by the fact that the military would provide him with financial assistance that would allow him to attend university upon completion of his term of enlistment and by his belief that the Army had a higher or noble purpose of doing good things. He chose specifically to become an infantryman because he wanted “to experience the essence of the Army.” [7] Prior to enlisting in the Army, Mr. Hinzman had apparently explored Buddhism. Nevertheless, at the outset of his military service, it appears he did not have any reservations about bearing arms or otherwise fulfilling his duties as a soldier. [8] However, during basic training, Mr. Hinzman testified that he underwent a process of desentization intended to dehumanize the enemy that caused him to start to question his involvement with the military. [9] After completing training, Mr. Hinzman was posted to Fort Bragg. Although he excelled as a soldier, Mr. Hinzman continued to question his impending involvement in combat. He testified before the Board that he had been “kind of living a double life,” outwardly indicating that he was a “soldier’s soldier” but inwardly developing concerns about killing. Ultimately, he concluded that he could not kill, and that all violence does is perpetuate more violence. [10] Consequently, Mr. Hinzman applied on August 2, 2002 for reassignment to non-combat duties as a conscientious objector, in accordance with Army Regulation 600-43. Although he indicated on his application that he was not a member of a religious sect or organization, he noted that over the past few years, he had been discovering a world-view framed by the teachings of Buddhism, which led to his decision that he was unable to kill. He also stated in the application that in January 2002, he and his wife had begun attending meetings of The Religious Society of Friends, or Quakers, a church espousing pacifism. In accordance with the military’s conscientious objector procedures, within three days of submitting his application for conscientious objector status, Mr. Hinzman was reassigned to guard the entrance gate at the Fort Bragg base. [11] For reasons that are unclear, Mr. Hinzman’s first conscientious objector application was not dealt with on its merits. Accordingly, he submitted a new application in October 2002, after he had learned that his unit would be deployed to Afghanistan. Mr. Hinzman believed that the United States had a legitimate basis for going into Afghanistan because he was satisfied that there were links between the Taliban regime then in power in Afghanistan and al-Qaeda, the terrorist organization responsible for the September 11, 2001 attacks on the United States. Mr. Hinzman therefore went to Afghanistan, where he was assigned to kitchen duties because of his pending application for conscientious objector status. [12] A hearing was held in respect of Mr. Hinzman’s conscientious objector application while he was in Afghanistan, on April 2, 2003. Although First Lieutenant Dennis Fitzgerald, who was appointed investigating officer, was satisfied that Mr. Hinzman sincerely opposes war on a philosophical, societal and intellectual level, he concluded that Mr. Hinzman did not meet the definition of conscientious objector, as outlined in Army Regulation 600-43, because Mr. Hinzman had indicated that while he was unable to conduct offensive operations in combat, he would conduct defensive and peacekeeping operations. The First Lieutenant therefore denied Mr. Hinzman’s conscientious objector application. First Lieutenant Fitzgerald also held that Mr. Hinzman was using his conscientious objector application to get out of the infantry, a conclusion based, in part, on the negative and apparently erroneous, inference drawn from the First Lieutenant’s belief that Mr. Hinzman did not claim conscientious objector status until after he learned he would be deployed to Afghanistan. [13] Although Mr. Hinzman has complained about his inability to call witnesses at the hearing because the hearing was held in Afghanistan and the witnesses he would have called were in the United States, he did not request an adjournment of the hearing, as he was permitted to do under Army Regulation 600-43. Moreover, Mr. Hinzman chose not to exercise his right to appeal the First Lieutenant’s decision, indicating that upon returning to the United States he was worn down and felt there would be no point in pursuing the matter. [14] Mr. Hinzman subsequently returned to the United States and resumed his normal duties as an infantryman. In December 2003, he learned that his unit would be deployed to Iraq on January 16, 2004. He was determined, however, not to fight in Iraq because he believed the United States military action there to be illegal and immoral. Consequently, Mr. Hinzman decided to desert. [15] Mr. Hinzman, along with his wife and son, arrived in Canada on January 3, 2004 and filed for refugee status approximately three weeks later. His refugee claim was based on his beliefs described above. [16] Mr. Hinzman maintains that, if returned to the United States, he will be prosecuted for desertion and likely receive a sentence of one to five years in a military prison. FACTS IN THE HUGHEY APPEAL [17] Brandon Hughey volunteered to join the U.S. Army on July 30, 2002 at the age of 17 years, while still a student in high school. He reported for duty on July 9, 2003. Like Mr. Hinzman, he enlisted for a period of four years. Mr. Hughey testified that he joined the military to access financial assistance that would enable him to go to college and because he believed that some things were worth fighting for. [18] Mr. Hughey learned of the war in Iraq while he was in basic training. Although he originally assumed the war in Iraq could be justified, his opinion changed over time, so that he too believed that the war in Iraq was illegal. [19] Mr. Hughey testified that while on approved leave from his unit from November 20, 2003 to December 18, 2003 he conducted research about the U.S. military action in Iraq that further entrenched his opposition to the war. Upon his return to his duty station, Fort Hood, Mr. Hughey told his non-commissioned staff sergeant that he did not think the military action in Iraq was morally right and asked the staff sergeant for assistance in seeking a discharge from the military. Mr. Hughey was told to stop thinking so much, that he had signed a contract, and that there was nothing that the superior officer was going to do to help accommodate his request for a discharge. A similar appeal by Mr. Hughey to another superior officer on a later occasion elicited a similar response. [20] Through research on the internet, Mr. Hughey learned of an anti-war activist named Carl Rising-Moore who was willing to help soldiers escape the military. After Mr. Hughey contacted him in February 2004, Mr. Rising-Moore agreed to help Mr. Hughey get to Canada and explained that Mr. Hughey’s only option would be to apply for refugee status on his arrival. [21] While Mr. Hughey and Mr. Rising-Moore were exchanging e-mails, Mr. Hughey learned that he would be deployed to Iraq.
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