Amnesty International was represented in this case by David Baker and Faisal Bhabha.
WHAT IS THIS CASE ABOUT?
Mr. Hinzman was an American soldier. He applied for conscientious objector status on the basis of his moral and religious opposition to the United States’ wars in Afghanistan and Iraq. His application was refused by the US military, and before being deployed in Iraq, he, his wife, and his son fled to Canada. When they arrived in Canada, they made a refugee claim in February 2004 on the basis that Mr. Hinzman would be court martialed and put at risk of torture and persecution if he returned to the United States.
The Refugee Protection Division (RPD) of Canada’s Immigration and Refugee Board rejected Mr. Hinzman and his wife’s refugee claim. In March 2008, Mr. Hinzman submitted an application to stay in Canada on humanitarian and compassionate (H&C) grounds. The officer considering the H&C application determined that Mr. Hinzman would have to show “unusual, undeserved or disproportionate hardship” if the application was not granted in order to succeed and be permitted to stay in Canada. Applying this test to a number of risk factors presented by Mr. Hinzman, the officer held that, although Mr. Hinzman would likely be court martialed when returned to the states, he would be afforded a fair process. Further, the officer determined that Mr. Hinzman would be able to avail himself of the protection of the United States to protect him and his family from the dangers of social ostracism and physical violence from individuals opposed to his political opinions.
Mr. Hinzman also asked that the officer consider the best interests of his children (the second of whom was born in Canada) in staying in Canada while assessing his H&C application. The officer determined that the children would be able to attend school in English in the United States and avail themselves of services to help them cope with bullying and other negative impacts associated with the stigma carried by their father.
Mr. Hinzman applied to have the officer’s decision on the H&C application judicially reviewed before the Federal Court of Canada. He argued that in denying his H&C application, the officer erroneously limited the analysis to assessing whether Mr. Hinzman and his family would face persecution or risk mistreatment if returned to the United States. By doing this, the analysis ended with a finding that Mr. Hinzman could seek protection from the United States and would be provided with due process, and prevented an assessment of whether a return would nevertheless cause him and his family undue hardship.
The Federal Court disagreed, finding that a risk of lawful and legitimate prosecution cannot constitute undue hardship when Mr. Hinzman would be provided with due process and state protection. The Federal Court also upheld the officer’s assessment that the risks of social ostracism, discrimination, and violence faced by Mr. Hinzman and his family if returned to the United States did not amount to undue hardship because they could avail themselves of state protection. Although the officer did not consider the consequences of family separation if Mr. Hinzman was prosecuted and possibly punished in the United States, the Federal Court found that the officer’s overall assessment of the best interests of the child was reasonable.
Mr. Hinzman appealed the judgment to the Federal Court of Appeal. In the appeal, Mr. Hinzman argued that the Federal Court failed to adequately consider Mr. Hinzman’s sincere moral, political, and religious objections to serving in the US war in Iraq. Mr. Hinzman argued that because of these views, he would be at risk of more severe punishment than other deserters and receive a harsher punishment because he chose to speak out publicly about his views.
AMNESTY INTERNATIONAL’S INTERVENTION
Before the case made it to the Federal Courts, Amnesty International had an active and long-standing interest in Mr. Hinzman’s case. Amnesty International became involved with Mr. Hinzman’s case when we first learned of Mr. Hinzman’s refugee claim in January 2004. Amnesty International was one of the first non-governmental organizations to advocate for and raise awareness of Mr. Hinzman’s situation, including through a public action begun in May 2005. Amnesty International also wrote a letter of support for Mr. Hinzman and his family for their Pre-Removal Risk Assessment and their H&C application. In those letters, we argued that if Mr. Hinzman were forcibly returned to the United States and imprisoned on the basis of his conscientious objection, Amnesty International would consider him to be a prisoner of conscience.
Amnesty International applied to intervene in Mr. Hinzman’s case before the Federal Court of Appeal. In our application, Amnesty International proposed that if granted leave to intervene, we would argue the values enshrined in the Canadian Charter of Rights and Freedoms (Charter) as well as Canada’s international human rights obligations should guide H&C consideration. The purpose of H&C applications is to give officers leeway to deal with situations not expressly contemplated in the Immigration and Refugee Protection Act; thus the phrase “humanitarian and compassionate” should be given an expansive meaning. The Charter and international human rights law protect the right of conscientious objection. Unfortunately, the Federal Court of Appeal denied Amnesty International’s application to intervene in the case.
STATUS OF THE CASE
In July 2010, the Federal Court of Appeal allowed Mr. Hinzman’s appeal, holding that the H&C officer ought to have given more consideration to public policy and humanitarian grounds, including family-related interests. The Federal Court of Appeal agreed with Mr. Hinzman that “the Officer’s analysis [was] really nothing more than a risk assessment which stops short at the availability of state protection and due process.” The Federal Court failed to consider Mr. Hinzman’s argument that he would be subjected to disproportionate hardship if returned to the United States. The Federal Court of Appeal set aside the H&C officer’s decision and sent Mr. Hinzman’s application back for redetermination by a different officer in light of the decision.
Refugee Protection Division decision on Mr. Hinzman’s application for refugee protection
Amnesty International’s letter in support of Mr. Hinzman’s H&C application
Amnesty International’s application to intervene before the Federal Court of Canada in Mr. Hinzman’s case
Affidavit of Gloria Nafziger in support of Amnesty International’s motion to intervene at the Federal Court of Canada in Mr. Hinzman’s case
Federal Court of Canada Judgment in Mr. Hinzman’s case
Amnesty International’s application to intervene before the Federal Court of Appeal in Mr. Hinzman’s case
Federal Court of Appeal judgment in Mr. Hinzman’s case
Amnesty International Media Briefing: “Jeremy Hinzman – Conscientious objector seeking refuge in Canada” (13 May 2005)
Amnesty International’s urgent action on behalf of Mr. Hinzman (September 2008)