International Law

Hinzman v. Canada: Iraq resister wins the battle but not yet the war

By Neil Wilson

The Federal Court of Appeal?s recent judgment in Hinzman v. Canada (Minister of Citizenship and Immigration), 2010 FCA 177 is a decisive, if transitory, victory for American Iraq war resisters seeking refuge in Canada. Transcending the narrow theme of conscientious objection, the decision simultaneously provides authoritative guidance on the standards expected of administrative decision-makers, the important distinctions between different types of immigration applications, and Federal Court procedure.

Hinzman is the latest chapter in the lengthy legal saga of Jeremy Hinzman, an American soldier who brought his family to Canada in 2004 to avoid deployment to Iraq. After having been denied refugee status in a case which went up the FCA in 2007, Hinzman filed both Humanitarian and Compassionate (H&C) and Pre-Removal Risk Assessment (PRRA) applications to remain in Canada. Both applications were denied, and Hinzman sought judicial review of the H&C at the Federal Court. The Federal Court dismissed the application for judicial review but allowed an appeal to the FCA via a certified question regarding whether punishment for desertion can constitute hardship in the context of an H&C application. The FCA declined to answer the certified question but allowed the appeal on the grounds that the H&C decision failed to consider the potential hardship arising from Hinzman?s moral, political and religious objections to serving in Iraq.

The key to understanding the decision is the distinction between H&C and PRRA applications. A PRRA application evaluates whether applicants are at risk of persecution in their home country ? a standard similar to that applied to refugees. An H&C application hinges on the significantly lower threshold of hardship. The government?s recent practice has been to have one immigration officer consider both applications, a process critics have observed can lead to boilerplate H&C decisions which inappropriately import a risk analysis into the distinct question of hardship required to be addressed in an H&C decision.

Hinzman lends significant weight to these critiques. The FCA, at paras. 22 and 29, reproduces virtually identical passages from the ostensibly distinct H&C and PRRA decisions; only the title of the application and the standard to be applied have been changed. The Court?s determination that the officer?s findings in the PRRA decision were used as the basis for the H&C decision here reveals the fiction of a conceptually distinct analysis of hardship. The Court agreed with Hinzman that the analysis provided in the H&C decision was little more than an assessment of risk and failed to meaningfully evaluate hardship.

The FCA went on to note the failure of the immigration officer to consider one of Hinzman?s primary submissions: that his motivations in coming to Canada and status as a prisoner of conscience if returned to the U.S. could be a factor indicating hardship. The Court found this failure to consider Hinzman?s beliefs rendered the H&C decision unreasonable. Importantly, the Court noted Hinzman?s submission that the right to conscientious objection is an ?emerging part of international human rights law?.

The reasons in Hinzman serve as a reminder of the high standards of competence rightly expected of administrative decision-makers. In disregarding the respondent Minister?s submission that the H&C officer did in fact consider all relevant factors, Hinzman reaffirms that a reasonable H&C determination requires that all humanitarian and compassionate factors be specified and analyzed separately ? and that Courts should not accept an invitation to read in factors to save an officer?s faulty analysis. Furthermore, Hinzman emphasizes the distinct nature of an H&C application and the discrete analysis it requires.

Notwithstanding this victory, Hinzman?s fate once again remains unclear. The FCA referred Hinzman?s application back to a different immigration officer for redetermination ? by no means a guarantee of a positive decision. However, as time drags on Hinzman?s H&C application becomes more and more compelling. The family?s establishment in Canada and his young children?s best interests will lend increasing strength to the application ? Canada has now been their home for almost seven years.

Full post as published by The Court on July 20, 2010 (boomark / email).