In a decision that has received much media attention, the Federal Court of Appeal (“FCA“) on July 6, 2010, released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)
Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war”. In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He has been AWOL from the US army since his arrival in Canada. He originally claimed refugee status, a claim which was unsuccessful.
He then filed a Pre-Removal Risk Assessment (“PRRA“), and an application for permanent residence based on Humanitarian & Compassionate (“H&C“) grounds.
A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA. She found that:
[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.
The appellant did not seek leave to apply for judicial review of the PRRA decision.
The Officer also rejected the H&C application. The appellant sought leave to appeal of this decision. The Federal Court upheld the Appellant’s decision. However, it certified the following question:
Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?
PRRA and H&C Applications Require Different Tests
The FCA answered the question in the affirmative. It is important to note that it did not rule that H&C would always be appropriate for war deserters, nor did it state that Mr. Hinzman’s H&C application should be successful. Rather, the FCA found that punishment for desertion, where the desertion was motivated by a deeply held moral, political and/or religious objection, could amount to unusual, undeserved, or disproportionate hardship. The Court thus remitted the matter to a different Officer with the requirement that the new officer reevaluate the application using this criteria.
This judgment is the latest in a series of decisions reminding Immigration Officers that PRRA and H&C applications require different tests.
The Immigration and Refugee Protection Act requires that PRRA officers give consideration to any new, credible, relevant, and material evidence of facts that might have affected the outcome of an appellant’s refugee claim hearing had this evidence been presented, and to assess the risk to the individual if removed.
H&C applications, meanwhile, require officers to regard public policy considerations and humanitarian grounds, including family-related interests.
The Officer did not appear to consider this, instead noting with regards to the H&C application that:
It is important to note that the possibility of prosecution for a law of general application is not, in and of itself, suffiicent evidence that an applicant will face unusual and undeserved, or disporporitionate hardship. The H&C application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.
As the FCA noted, this standard of analysis is generally used for PRRA applications. It is not the test for H&C applications.
Once again, the FCA stressed that it was not altering the discretion of officers, nor that it was giving Mr. Hinzman a right to a particular outcome. Rather, it found that the Officer had to apply the appropriate test.