Conscientious objection is an โemerging part of international human rights lawโ
Immigration officers must consider whether punishment for C.O. can amount to unusual, undeserved or disproportionate hardship.
๐๐ช๐ฏ๐ป๐ฎ๐ข๐ฏ ๐ท. ๐๐ข๐ฏ๐ข๐ฅ๐ข (๐๐๐) 2010 ๐๐๐ 177
Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere and 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?
An American soldier who holds strong moral and religious beliefs against all participation in war left the United States upon learning that his unit would be deployed to Iraq and was absent without leave (AWOL) from the United States Army since his arrival in Canada.
He unsuccessfully claimed refugee status in Canada with his family asserting a well-founded fear of persecution in the United States, based upon political opinion.
The applicant filed a pre-removal risk assessment (PRRA) application and an application for permanent residence from within Canada under section 25 of the Immigration and Refugee Protection Act, on humanitarian and compassionate (H&C) grounds.
The PRRA officer and H&C officer issued negative decisions in both applications. Upon judicial review of the negative H&C decision, the applications Judge, in rendering judgment, certified that a serious question of general importance which would be dispositive of the appeal, was involved:
๐๐ข๐ฏ ๐ฑ๐ถ๐ฏ๐ช๐ด๐ฉ๐ฎ๐ฆ๐ฏ๐ต ๐ถ๐ฏ๐ฅ๐ฆ๐ณ ๐ข ๐ญ๐ข๐ธ ๐ฐ๐ง ๐จ๐ฆ๐ฏ๐ฆ๐ณ๐ข๐ญ ๐ข๐ฑ๐ฑ๐ญ๐ช๐ค๐ข๐ต๐ช๐ฐ๐ฏ ๐ง๐ฐ๐ณ ๐ฅ๐ฆ๐ด๐ฆ๐ณ๐ต๐ช๐ฐ๐ฏ, ๐ธ๐ฉ๐ฆ๐ฏ ๐ต๐ฉ๐ฆ ๐ฅ๐ฆ๐ด๐ฆ๐ณ๐ต๐ช๐ฐ๐ฏ ๐ธ๐ข๐ด ๐ฎ๐ฐ๐ต๐ช๐ท๐ข๐ต๐ฆ๐ฅ ๐ฃ๐บ ๐ข ๐ด๐ช๐ฏ๐ค๐ฆ๐ณ๐ฆ ๐ข๐ฏ๐ฅ ๐ฅ๐ฆ๐ฆ๐ฑ๐ญ๐บ ๐ฉ๐ฆ๐ญ๐ฅ ๐ฎ๐ฐ๐ณ๐ข๐ญ, ๐ฑ๐ฐ๐ญ๐ช๐ต๐ช๐ค๐ข๐ญ ๐ข๐ฏ๐ฅ/๐ฐ๐ณ ๐ณ๐ฆ๐ญ๐ช๐จ๐ช๐ฐ๐ถ๐ด ๐ฐ๐ฃ๐ซ๐ฆ๐ค๐ต๐ช๐ฐ๐ฏ ๐ต๐ฐ ๐ข ๐ฑ๐ข๐ณ๐ต๐ช๐ค๐ถ๐ญ๐ข๐ณ ๐ธ๐ข๐ณ, ๐ข๐ฎ๐ฐ๐ถ๐ฏ๐ต ๐ต๐ฐ ๐ถ๐ฏ๐ถ๐ด๐ถ๐ข๐ญ, ๐ถ๐ฏ๐ฅ๐ฆ๐ด๐ฆ๐ณ๐ท๐ฆ๐ฅ ๐ฐ๐ณ ๐ฅ๐ช๐ด๐ฑ๐ณ๐ฐ๐ฑ๐ฐ๐ณ๐ต๐ช๐ฐ๐ฏ๐ข๐ต๐ฆ ๐ฉ๐ข๐ณ๐ฅ๐ด๐ฉ๐ช๐ฑ ๐ช๐ฏ ๐ต๐ฉ๐ฆ ๐ค๐ฐ๐ฏ๐ต๐ฆ๐น๐ต ๐ฐ๐ง ๐ข๐ฏ ๐ข๐ฑ๐ฑ๐ญ๐ช๐ค๐ข๐ต๐ช๐ฐ๐ฏ ๐ง๐ฐ๐ณ ๐ฑ๐ฆ๐ณ๐ฎ๐ข๐ฏ๐ฆ๐ฏ๐ต ๐ณ๐ฆ๐ด๐ช๐ฅ๐ฆ๐ฏ๐ค๐ฆ ๐ฐ๐ฏ ๐ฉ๐ถ๐ฎ๐ข๐ฏ๐ช๐ต๐ข๐ณ๐ช๐ข๐ฏ ๐ข๐ฏ๐ฅ ๐ค๐ฐ๐ฎ๐ฑ๐ข๐ด๐ด๐ช๐ฐ๐ฏ๐ข๐ต๐ฆ ๐จ๐ณ๐ฐ๐ถ๐ฏ๐ฅ๐ด?
Throughout the proceedings, the appellant submitted that he risked facing unusual, undeserved and disproportionate hardship if returned to the United States. It was argued that if the Appellant were subjected to a court-martial proceeding and charged with being AWOL or desertion, that he would receive a more severe punishment than other deserters because of his political opinion regarding the war in Iraq and his choice to speak out publicly about it.
It was also argued that international human rights organizations would consider the appellant a prisoner of conscience if returned to the United States and imprisoned for his desertion.
The Court found that the H&C officer had the duty to look at all of the appellantsโ personal circumstances, including his beliefs and motivations, before determining if there were sufficient reasons to make a positive H&C decision. The decision was significantly flawed and therefore unreasonable.
The Court allowed the appeal and set aside the decision of the officer denying the appellantsโ H&C application and referred the application back for redetermination by a different officer.
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