Canada’s Federal Court of Appeal gives U.S. Army deserter another shot at obtaining permanent residency on humanitarian and compassionate grounds
Jeremy Hinzman deserted from his U.S. Army unit, which was about to deploy to Iraq, and, on 3 January 2004, entered Canada with his family. On Tuesday, Canada’s Federerl Court of Appeal reversed a lower court decision that had upheld the Canadian government’s denial of permanent residency to Hinzman on humanitarian and compassionate grounds. The Federal Court of Appeal’s ruling in Hinzman v. Minister of Citizenship and Immigration, 2010 FCA 177 (July 6, 2010), is available here.
Hintzman initially sought refugee status, which was denied. He then filed for a Pre-Removal Risk Assessment (PRRA) and permanent residency in Canada on humanitarian and compassionate grounds. The Immigration Officer who reviewed Hinzman’s PRRA application concluded that the UCMJ’s prohibitions against desertion and absence without leave were laws of general application and that prosecution under such generally applicable laws did not establish a well-founded fear of persecution. The Immigration Officer also found that there wasn’t convining evidence that the United States was unwilling or unable to protect Hinzman. The same Immigration Officer also rejected teh permanent residency request.
According to the Court of Appeal, in denying the permanent residency request, the Immigration Officer focused on the wrong issue. According to the court, the key issue was “will Mr. Hinzman be subjected to disproportionate hardship if returned to the United States, regardless of the existence of a law of general application or state protection and notwithstanding other findings on differential treatment and due process?” The Immigration Officer, ruled the Court of Appeal, failed to address that question when ruling on the permanent residency application.
The Court of Appeal explained: “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’.” The Immigration Officer erred by failing to discuss these factors in her decision denying permanent residency on humanitarian and compassionate grounds.
The Court of Appeal emphasized that its ruling shouldn’t be construed as suggesting any particular outcome for Hintzman and his family. The court concluded by setting aside the Immigration Officer’s decision denying the permanent residency application and remanding the application “for redetermination by a different officer.”