Federal Court of Appeal rules in favour of Iraq War resister Jeremy Hinzman and family

Press Release,

Tuesday, July 6, 2010


Immigration Minister must act as directed by Parliament and let resisters stay in Canada

TORONTO — This afternoon the Federal Court of Appeal issued its unanimous judgment that an immigration officer's decision rejecting Jeremy Hinzman's application for permanent residence in Canada was "significantly flawed" and "unreasonable".

The Federal Court of Appeal decided that the Federal Court erred in a June 2, 2009 ruling by dismissing the application by U.S. Iraq war resister Jeremy Hinzman for judicial review of a Pre-Removal Risk Assessment (PRRA) Officer's humanitarian and compassionate (H&C) grounds decision. The PRRA Officer had rejected the application by Hinzman and his family, from within Canada, for permanent residence.

Jeremy Hinzman was the first U.S. Iraq War resister to seek refuge in Canada. He, along with his wife Nga Nguyen and their son Liam arrived in Canada on January 3, 2004. Their daughter Meghan was born in Toronto on July 21, 2008.

"This decision is important for all Iraq War resisters in Canada," said Michelle Robidoux, spokesperson for the War Resisters Support Campaign. "The Federal Court of Appeal has clearly said that immigration officers can no longer ignore the sincerely held beliefs of these soldiers. Canadians understand and support the decision these soldiers made in rejecting the Iraq War. It's time for the Harper government to stop deporting them and to let them stay in Canada."

The Hinzman-Nguyen family's Federal Court of Appeal hearing took place on May 25, 2010, the same day that a private member's bill in support of Iraq War resisters – Bill C-440 – was debated in Parliament at Second Reading. The vote on Second Reading is expected to take place shortly after the House of Commons resumes sitting in September.

"The House of Commons has twice voted to let Iraq War resisters stay in Canada," said Bill Siksay, MP (Burnaby—Douglas). "Canadians support Parliament's demand that the Conservative minority government stop deporting these veterans. When will Immigration Minister Jason Kenney act as directed by Parliament and use his ministerial authority to give Iraq War resisters permanent resident status?"

Bill C-440, brought forward by Liberal Gerard Kennedy, MP (Parkdale—High Park) on September 17, 2009 and seconded by New Democrat Bill Siksay, will compel the government to respect direction that has already been given twice by Parliament through motions that were adopted on June 3, 2008 and March 30, 2009. The Conservative government has ignored the motions, calling them "non-binding," and refused to grant Permanent Resident status to Iraq War resisters. Since the first motion was adopted, Iraq War resisters Robin Long and Cliff Cornell have been forced back to the U.S. where they were court martialed, convicted of desertion and jailed. Iraq War veteran and resister Rodney Watson remains in sanctuary in the First United Church in Vancouver where he sought refuge after being ordered deported by the Harper government.

A public opinion poll conducted by Angus Reid Strategies in June 2008 found that 64 per cent of Canadians supported Parliament's vote directing the minority Harper government to immediately stop deporting Iraq War resisters and create a program to facilitate the resisters' requests for permanent resident status.

Excerpts from the Federal Court of Appeal ruling – July 6, 2010 

The beliefs and motivations of Mr. Hinzman were of important significance to the ultimate decision, given the context of an H&C application. The appellants had also provided some evidence that the right to conscientious objection "is an emerging part of international human rights law" (Zoljagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (FCA), at paragraph 15). The Officer had given some weight in her PRRA decision to the views of Amnesty International. Still, there is no assessment of these factors in her H&C decision. ...

The H&C Officer had the duty to look at all of the appellants' personal circumstances, including Mr. Hinzman's beliefs and motivations, before determining if there were sufficient reasons to make a positive H&C decision (ibidem, Chapter 5, section 11.3). She did not. Had the Applications Judge addressed the appellants' ground of complaint, as stated at paragraph 57 of his Reasons, I am convinced that he would have concluded as I do and found that the H&C decision was significantly flawed and therefore unreasonable.

Source: http://wmtc.blogspot.com/2010/07/war-resisters-support-campaign.html

Win for war resisters

Editorial, The Toronto Star, Toronto, 8 July 2010

Parliament has voted twice to let Iraq war resisters from the United States stay in Canada. Now the Federal Court of Appeal has added its voice to the debate.

On Tuesday, the court ruled that Jeremy Hinzman, an asylum-seeking American paratrooper and conscientious objector, should have another chance at remaining in Toronto, where he has settled with his wife, son and baby daughter. The court found that an immigration officer’s 2008 decision to deny Hinzman’s application for permanent residence in Canada was “unreasonable” and “significantly flawed” because it didn’t take into account his pacifist religious beliefs.

The latest decision gives Hinzman and his family new hope, but it shouldn’t have come to this. And it wouldn’t have, but for the Harper government’s ideological stand that those who refuse U.S. war duty are bogus refugee claimants. “Our government remains convinced that U.S. military deserters are not genuine refugees and do not fall under internationally accepted definitions of people in need of protection,” said a statement issued Wednesday by the government.

The government earlier dismissed Parliament’s two motions to grant war resisters permanent resident status as “non-binding.” So two other resisters were subsequently deported and sentenced to U.S. jail time on charges of desertion.

Hinzman should avoid that fate. The Georgia-born soldier deserted in 2004 after Washington rejected his application for conscientious objector status. He fled to Canada in the belief we would welcome him, as we did those who avoided duty in Vietnam in the 1960s and 1970s.

A new private member’s bill put forward by Liberal MP Gerard Kennedy comes up for a vote in September. It would allow foreign military deserters to stay if their action is based on “sincere moral, political or religious objection.” The bill deserves support.

Source: http://www.thestar.com/opinion/editorials/article/833454--win-for-war-resisters