Refugee Protection Division ignored evidence that US military justice system fails to meet basic fairness standards
By the War Resisters Support Campaign (Canada). February 4, 2013
TORONTO, ONTARIO - On Friday, February 1, the Federal Court of Canada released a decision granting United Stated (US) war resister Jules Tindungan a new hearing before the Immigration and Refugee Board (IRB). The Court found errors in the original IRB decision pertaining to issues which are at the heart of asylum claims by US soldiers in Canada.
Mr. Tindungan is one of dozens of former US soldiers who have sought asylum in Canada because of their objection to the wars in Iraq and Afghanistan. Tindungan refused to return to combat for the United States military in 2008 after serving a 15 month combat tour and seeing first-hand the breaches of the Geneva Conventions committed by US forces.
Mr. Tindungan argued before the Refugee Board that he faces differential punishment in the US because he has spoken out publicly against US military actions in Iraq and Afghanistan. He also argued that he would not get a fair trial if returned because the US court-martial system is not an independent and impartial tribunal as required under Canadian and International law.
After reviewing Tindungan''s case, the Federal Court found that Tindungan "submitted voluminous documentary evidence from credible, third-party sources … that suggest that the US has not complied with its international obligations." However, the Refugee Board improperly ignored this evidence.
The Court further found that the US court-martial system "fails to comply with basic fairness requirements found in Canadian and International Law", therefore impacting whether Tindungan would receive a fair hearing if returned to the US.
While Mr. Tindungan presented compelling evidence that the US military justice system fails to meet basic fairness standards that are internationally recognized to be fundamental to any tribunal system, this evidence was not taken into consideration by the Refugee Protection Division (RPD).
The Court also found that the Refugee Board failed to deal properly with evidence that soldiers, such as Tindungan, who have spoken out publicly about their objections to US actions in Iraq and Afghanistan are subjected to particularly harsh punishments because of having vocalized their political opinions.
"This decision underlines what individuals like war resister Kim Rivera have been raising all along-that soldiers who speak out against these wars face harsher punishment, and have no recourse within the US military justice system," said Michelle Robidoux, spokesperson for the War Resisters Support Campaign.
On September 17, 2012 a Federal Court judge denied Kim Rivera''s request for a stay of removal, finding the possibility of her arrest and detention in the US to be "speculative". Ms. Rivera was arrested three days later as she presented herself at the US border. Rivera is now facing court martial at Fort Carson, Colorado, and likely incarceration.
In an open letter to Prime Minister Stephen Harper published January 26, 2013 in The Globe and Mail, prominent Canadians including broadcaster Andy Barrie, Alexandre Trudeau, Dr. John Polanyi and many others stated: "We respectfully call on the Minister of Citizenship, Immigration and Multiculturalism Jason Kenney to cease all deportation orders against US Iraq War resisters and make provision for their permanent residence in Canada."
In July 2010, Citizenship and Immigration Canada, at the direction of Immigration Minister Jason Kenney, issued Operational Bulletin 202 which formalizes the bias against all US war resisters in policy that immigration decision-makers must follow.
Amnesty International Canada and former IRB Chair Peter Showler have called for Citizenship and Immigration Canada (CIC) Operational Bulletin 202 to be rescinded because it "fails to recognize that military desertion for reasons of conscience is in fact clearly recognized as a legitimate ground for refugee protection" and it "misstates the law and seeks to intrude on the independence of both IRB members and Immigration Officers."
Federal Court/Federal Court of Appeal decisions in favour of US war resisters
Since 2008, there have been 11 Federal Court or Federal Court of Appeal decisions in favour of US war resisters who are seeking permanent resident status in Canada:
Key dates: US war resisters in Canada
January 3, 2004: Jeremy Hinzman, the first US Iraq War resister to come to Canada, arrived along with his wife Nga Nguyen and their first child Liam.
May 2004: War Resisters Support Campaign founded in Toronto to advocate for a provision to be made to allow US war resisters to the Iraq War to stay in Canada.
June 3, 2008: The House of Commons passed a motion directing the Government of Canada to immediately stop deportation proceedings against all US Iraq War resisters and facilitate the resisters'' requests for permanent resident status (http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3204056&Language=E&Mode=1&Parl=39&Ses=2).
June 27, 2008: An Angus Reid Strategies poll reveals that the majority (two-thirds) of Canadians agrees with the decision to let US Iraq War resisters stay in Canada as permanent residents (http://www.angus-reid.com/wp-content/uploads/2012/08/2008.06.27_Soldiers.pdf).
July 15, 2008: Robin Long becomes the first US Iraq War resister to be deported by the Harper government (http://www.canada.com/theprovince/news/story.html?id=83bfbe5f-018c-43f9-8f31-20d79f3d0148).
October 2, 2008: Prime Minister Stephen Harper reversed his previous support for the US-led invasion and occupation of Iraq stating during the English-language leaders'' election debate:
"It was absolutely an error. It''s obviously clear the evaluation of weapons of mass destruction proved not to be correct. That''s absolutely true and that''s why we''re not sending anybody to Iraq."
January 9, 2009: Jason Kenney was criticized by Amnesty International Canada and the Canadian Council for Refugees for biasing all US resisters'' cases with his public "bogus refugee claimants" comment (http://www.cbc.ca/news/canada/story/2009/01/09/refugee-war.html).
February 4, 2009: US Iraq War resister Cliff Cornell was arrested when he crossed the border into the United States after exhausting all appeals to remain in Canada (http://www2.canada.com/nanaimodailynews/news/story.html?id=c74e9d3c-3582-43e8-b34e-352f4e25d473).
March 15, 2009: Members of Parliament Olivia Chow and Borys Wrzesnewskyj met with US Iraq War resister Robin Long in the Naval Consolidated Brig Miramar near San Diego. Long was court-martialed and sentenced to 15 months in prison after being deported from British Columbia by the Harper government (http://www.ctvnews.ca/mps-visit-deserter-in-u-s-prison-1.379609).
March 30, 2009: The June 3, 2008 motion was passed by Parliament a second time (http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3681601&Language=E&Mode=1&Parl=40&Ses=2).
April 28, 2009: Cliff Cornell was sentenced to 12 months in prison and a bad conduct discharge after publicly expressing his conscientious objection to the Iraq War while in Canada. Prosecutors used footage of a television news interview with Cornell as evidence against him (http://www.straight.com/news/us-war-resister-and-ex-bc-resident-cliff-cornell-sentenced-one-year-prison).
September 18, 2009: US war resister and veteran Rodney Watson took sanctuary in the First United Church in Vancouver, BC, to avoid deportation by the Harper government. He remains there today (http://www.thestar.com/opinion/2009/12/24/why_a_resister_chose_canada_over_the_war_in_iraq.html).
July 6, 2010: Federal Court of Appeal issued its unanimous ruling in favour of Hinzman (http://www3.sympatico.ca/ken.marciniec/20100706-FederalCourtOfAppeal-HinzmanVMinCitizenshipImmigration_A-276-09.pdf).
July 22, 2010: Citizenship and Immigration Canada, at the direction of Immigration Minister Jason Kenney, issued Operational Bulletin 202 which formalizes the bias against all US war resisters in policy that immigration decision-makers must follow (http://www.cic.gc.ca/english/resources/manuals/bulletins/2010/ob202.asp).
September 2010: Peter Showler, former Chair of Canada''s Immigration and Refugee Board, and Amnesty International Canada call on Immigration Minister Jason Kenney to rescind CIC Operational Bulletin 202 because it, "misstates the law and seeks to intrude on the independence of both IRB members and Immigration Officers," and "implies that military deserters from the US should be treated differently than deserters from other countries," despite there being, "no basis in law for that proposition." (http://www.resisters.ca/2010.09.29-Embassy_WithdrawUSWarResisterBulletin.pdf)
April 5, 2011: Federal Court of Canada rules in favour of US war resister and veteran Dean Walcott.
July 18, 2011: Federal Court of Canada rules in favour of US war resister and veteran Chris Vassey.
August 30, 2012: Canadian government orders US war resister Kim Rivera and her family to leave Canada by September 20th or face deportation. Kim is the first woman Iraq War resister to seek asylum in Canada. She and her husband Mario have four children, two of them born in Canada.
September 17, 2012: Federal Court Justice Near denies Kim Rivera a stay of removal, stating that it is only "speculative" that Kim would be arrested and court martialed if she is forced to return to the US.
September 20, 2012: Kim Rivera is arrested by US authorities after voluntarily turning herself in at the border. She has been charged with desertion and is awaiting court martial at Fort Carson, Colorado.
September 20, 2012: Conservative Members of Parliament break into applause upon the announcement of Kim Rivera''s forced return to the United States.
January 26, 2013: Prominent Canadians publish open letter to the Prime Minister in support of US war resisters in The Globe and Mail.
February 1, 2013: Federal Court of Canada rules in favour of US war resister and veteran Jules Tindungan.
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