Hinzman v. Canada

Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171 (CanLII)


• Hinzman was a war resister from the USA who made a refugee claim in Canada
• Mactavish J at the Federal Court delves into a long analysis of whether an internationally recognised right to conscientious objection exsts, and whether foot-soldiers can commit crimes against the peace if otherwise acting lawfully in the context of war; she determines that 171 of the UNHCR Handbook (right not to be a persecutor) should be interpreted in light of 1F(a) of Convention; finds only those in policy positions can commit crimes against the peace, so Hinzman doesn’t fit into the exception; there is no persecution here as no recognized right to object to a war
• On the appeal to the FCA, the FCA chooses to dismiss the appeal on the basis of Hinzman failing to rebut the presumption of state protection (different grounds than the FC)
• Paragraphs 42-46 Hinzman, along with paragraphs 16-30 of Flores Carillo, were recently cited by the FCA in Mudrak 2016 as being well-settled law. This law can be summarized as follows:

o There is a presumption of state protection
o You need clear, convincing evidence to rebut the adequacy of state protection
o This is an evidentiary threshold needed to satisfy the standard of proof on a balance of probabilities
o The more democratic the country in question, the more you have to do to seek out assistance from your home state

• The RPD Legal Guidelines cite this case, noting that Hinzman and Hughey had not sufficiently pursued opportunities to obtain state protection in the United States before asking for international protection. The following statements by the FCA are of interest:

o The presumption of state protection applies equally to cases where an individual claims to fear prosecution by non-state entities and to cases where the state is alleged to be a persecutor. This is particularly so where the home state is a democratic country like the United States.

o A claimant coming from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status.

• [45] In Kadenko v. Canada (Solicitor General) (1996), 1996 CanLII 3981 (FCA), 143 D.L.R. (4th) 532 at page 534 (F.C.A.), Décary J.A. elaborated on these principles and highlighted that the more democratic a country, the more the claimant must have done to seek out the protection of his or her home state:

o When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state’s institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. [Emphasis added.]

• Applied to the facts of the case, Mr. Hinzman and Mr. Hughey could objectively have done more to avail themselves of the protection of the state prior to coming to claim refugee status in Canada:

o [50] Neither Mr. Hinzman nor Mr. Hughey made an adequate attempt to avail himself of the protections afforded by the United States. Although Mr. Hinzman applied for conscientious objector status, he did not avail himself of all the recourses available to him. In particular, he failed to take advantage of his right to request an adjournment of the hearing respecting his conscientious objector application until his return to the United States, where he would be able to call appropriate witnesses, and to avail himself of his right of appeal from a negative decision at first instance. Like the Board, I find that it was not unreasonable to expect that Mr. Hinzman would have pursued further his request for conscientious objector status after learning that First Lieutenant Fitzgerald had found against him.