Zolfagharkhani v. Canada

Zolfagharkhani v. Canada ( Minister of Employment and Immigration ), [1993] 3 FCR 540, 1993 CanLII 2971 (FCA)


• This is a seminal case in relation to military deserters and whether laws of general application can amount to persecution
• Paramedic in Iranian army; context is the Iran/Iraq war and attacks on Kurds
• May have been forced to participate in attacks with chemical weapons
• Claim was on the basis that he did not want to participate in these chemical attacks, not that he simply didn’t want to be a member of the army
• The Court notes, in relation to laws of general application:

o After this review of the law, I now venture to set forth some general propositions relating to the status of an ordinary law of general application in determining the question of persecution:

 (1) The statutory definition of Convention refugee makes the intent (or any principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.
 (2) But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.
 (3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.
 (4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.

• The Court goes on to comment on the specific case of military deserters who are subject to laws of general application for desertion:

o The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1988, paragraph 171, states:

Where . . . the type of military action, with which an individual does not wish to be associated, is condemned by the international legal community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could . . . in itself be regarded as persecution.
In my view, that is precisely the situation in the case at bar. The probable use of chemical weapons, which the Board accepts as a fact, is clearly judged by the international community to be contrary to basic rules of human conduct, and consequently the ordinary Iranian conscription law of general application, as applied to a conflict in which Iran intended to use chemical weapons, amounts to persecution for political opinion.
In Abarca v. The Minister of Employment and Immigration, W-86-4030-W, decided March 21, 1986 [not reported], the Board determined a conscientious objector from El Salvador to be a Convention refugee on the basis of political opinion where it found he would probably be forced to participate in violent acts of persecution against non-combatant civilians, which is contrary to recognized basic international principle of human rights. The Board came to a similar conclusion in Cruz v. Canada (Minister of Employment & Immigration) (1988), 10 Imm. L.R.. (2d) 47 (I.A.B.), involving a deserter from the Mexican army.
In the case at bar, the Board erred in failing to find that the appellant’s specific objection was either reasonable or valid. If truly felt, it was both. It was also a political act, since as Professor Goodwin-Gill states in The Refugee in International Law (1983), at page 34:
Military service and objection thereto, seen from the point of view of the state, are issues which go to the heart of the body politic. Refusal to bear arms, however motivated, reflects an essentially political opinion regarding the permissible limits of state authority, it is a political act.
There can be no doubt that the appellant’s refusal to participate in the military action against the Kurds would be treated by the Iranian government as the expression of an unacceptable political opinion.
Zolfagharkani in other case-law:

o See SCC decision in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593, 1995 CanLII 71 (SCC), <http://canlii.ca/t/1frhh> (Tab 6, General List) at paragraph 65 (in the persuasive dissent by La Forest J)

o On the notion of military desertion, conscientious objection to wars in general, and the interpretation of 171 of UNHCR Handbook, see the FC decision in Hinzman. Recall that the FCA dismissed the appeal on the state protection issue and not on an interpretation of 171 of the Handbook