Hinzman v. Can. (M.C.I.) (2007), 362 N.R. 1 (FCA)
MLB headnote and full text
Temp. Cite: [2007] N.R. TBEd. MY.009
Jeremy Hinzman (a.k.a. Jeremy Dean Hinzman), Liam Lieam Nguyen Hinzman (a.k.a. Liam Liem Nguye Hinzman) and Nga Thi Nguyen (appellants) v. The Minister of Citizenship and Immigration (respondent)
Brandon David Hughey (appellant) v. The Minister of Citizenship and Immigration (respondent)
(A-182-06; A-185-06; 2007 FCA 171)
Indexed As: Hinzman et al. v. Canada (Minister of Citizenship and Immigration)
Federal Court of Appeal
Décary, Sexton and Evans, JJ.A.
April 30, 2007.
Summary:
Hinzman and 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 was 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. The Refugee Protection Division of the Immigration and Refugee Board held that Hinzman and Hughey were not Convention refugees or persons in need of protection, as set out in the Immigration and Refugee Protection Act. Hinzman and Hughey applied for judicial review.
The Federal Court in a decision reported 290 F.T.R. 8 (Hinzman) and [2006] F.T.R. Uned. 621 (Hughey) dismissed the applications. Hinzman and Hughey appealed.
The Federal Court of Appeal dismissed the appeals.
Aliens – Topic 1322
Admission – Refugee protection, Convention refugees and persons in need of protection – Grounds – Well-founded fear of persecution – Conscientious objectors – [See
Aliens – Topic 1323.2
].
Aliens – Topic 1323.2
Admission – Refugee protection, Convention refugees and persons in need of protection – Persecution – Protection of country of nationality – Hinzman and Hughey (the soldiers) 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 was illegal and immoral – After learning that their units would be deployed to Iraq, they deserted the military and came to Canada, where they claimed refugee status – The Refugee Protection Division of the Immigration and Refugee Board held that the soldiers were not Convention refugees or persons in need of protection within the meaning of the Immigration and Refugee Protection Act – The soldiers applied for judicial review – The Federal Court dismissed the applications – The soldiers appealed – The Federal Court of Appeal dismissed the appeals – The court held that the soldiers were unable to satisfy the first stage of the analysis in a refugee claim, i.e., they were unable to rebut the presumption that their home country, the United States, was incapable of protecting them – Therefore, it was unnecessary to consider the issues arising in the second stage of the analysis including the relevance of the legality of the Iraq war – See paragraphs 1 to 64.
Cases Noticed:
Chan v. Minister of Employment and Immigration, [1995] 3 S.C.R. 593; 187 N.R. 321, refd to. [para. 23].
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 41].
Kadenko et al. v. Canada (Solliciteur général) (1996), 206 N.R. 272; 143 D.L.R.(4th) 532 (F.C.A.), refd to. [para. 45].
Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.), refd to. [para. 46].
Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3; 187 F.T.R. 110, refd to. [para. 53].
Sepet et al. v. United Kingdom (Secretary of State for the Home Department), [2003] UKHL 15; 305 N.R. 366, refd to. [para. 59].
Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 60].
Statutes Noticed:
Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 95, sect. 96 [para. 36].
Authors and Works Noticed:
United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1988), para. 171 [para. 24].
Counsel:
Jeffry A. House, for the appellants;
Marianne Zoric, Robert Bafaro and Janet Chisholm, for the respondent.
Solicitors of Record:
John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.
This appeal was heard in Toronto, Ontario, on March 19, 2007, before Décary, Sexton and Evans, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court by Sexton, J.A., on April 30, 2007.
