Federal Court of Appeal rules in favour of U.S. war deserter
By Philip Ling
Canwest New Service
July 7, 2010 8:04
OTTAWA—-The federal government's bid to deport an American war deserter from Canada has been dealt a blow by the Federal Court of Appeal.
In a unanimous decision Tuesday by the three-judge panel, the court ruled that an immigration officer's decision rejecting Jeremy Hinzman's application for permanent residence in Canada was “significantly flawed and therefore unreasonable.”
The U.S. soldier arrived in Toronto in 2004 in protest of the Iraq war and is seeking a bid to stay on humanitarian and compassionate grounds.
His lawyer, Alyssa Manning, told Canwest News Service the appeal was made on the basis that the immigration officer did not take into account Hinzman's beliefs and motivations including a belief that the Iraq war violated international laws and human rights in returning the humanitarian and compassionate decision.
“This officer missed the point and only considered refugee-type questions,” she said, highlighting that refugee cases typically only consider risk to life or risk of persecution.
“A H&C (officer) is supposed to consider humanitarian and compassionate values the questions inherent with a H&C application,” Manning said.
“Hinzman's beliefs, his whole reasons for being in Canada in the first place weren't considered by the H&C officer, and that's what was significantly flawed about (the officer's) decision.”
Hinzman and his family are “quite relieved with the decision,” said Manning. “They're definitely very pleased with that.”
Hinzman served in Afghanistan in 2002 and 2003. He applied for conscientious objector status when the Iraq war began but was denied.
He then moved to Toronto with his wife, Nga Nguyen, and son in January 2004. The couple has since also had a daughter, born in Toronto.
In 2008, he was ordered deported, but Hinzman appealed, saying he will be jailed if he returns to the U.S.
His deportation was put on hold while the judicial review took place, with his deportation case heard in May before the Federal Court of Appeal.
Manning said Tuesday's Appeal Court ruling can only determine if the H&C officer's decision was reasonable or not rather than deciding if Hinzman can stay in Canada.
Hinzman's H&C application will now go back for reconsideration by a new officer. There is no timeline as to when the application will be heard, Manning said.
Michelle Robidoux, a spokeswoman with the War Resisters Support Campaign, said Tuesday's court decision “is important for all Iraq War resisters in Canada.”
“The Federal Court of Appeal has clearly said that immigration officers can no longer ignore the sincerely held beliefs of these soldiers,” she said. “It's time for the Harper government to stop deporting them and to let them stay in Canada.”
Federal Immigration Minister Jason Kenney did not immediately respond to a question for comment Tuesday night.
Since 2008, Canada has ordered the deportation of as many as seven U.S. war deserters and their families.