Federal Court of Canada: US AWOL soldiers may be refugees after all

Last fall, we had a discussion about the status of US AWOL soldiers in Canada: Canadian Supremes: AWOL U.S. soldiers are not refugees. Bricker and I had a bit of a debate about the implications of the decision.

The issue is back in the news, with a new decision from the Federal Court of Canada (the federal court of first instance with supervisory powers over federal boards and tribunals). The Federal Court set aside a decision of the Immigration and Refugee Board which had rejected an application for refugee status by an American soldier: U.S. Deserter wins appeal in fight for refugee status.

The decision appears to lower the bar for US soldiers to claim refugee status in Canada, but did not make a final decision. The Court sent it back to the Board for further hearings. And, the feds could try to appeal it to the Federal Court of Canada.

sigh We’re just gonna have to deal with Soviet Canuckistan, even though the Helms Amendment forbids the use of Omega Force against caucasians.

It seems to me it the bar is still quite high .
I know nothing about this issue, or the content of the previous ruling, or Canadian law, but at a very first glance, it looks like a ruling a court would make to assert that there can be situations where a deserter could get a refugee status (so that for instance such a status wouldn’t be denied to, say, a soldier serving in the military of a very repressive regime, because his extradition is requested solely on the basis of him being a deserter, and not for any other political crime).

I thought so because appeal courts frequently make such rulings, basically saying “It’s not that we disagree with the ruling made in this particular case, but the arguments used by the lower court were too broad/too narrow/misguided and we don’t want this ruling to set a precedent that could have unwanted consequences in a different case”

I’m not about to go to the bother of reading the decision :stuck_out_tongue: but that’s what it looks like to me: “It’s not that you came to the wrong conclusion, but the decision was based on improper grounds. Do it over again.” It has lowered the bar the deserters have to hurdle, but it doesn’t look to me like it’s lowered enough that they’ll make it over. I would defer to Northern Piper’s analysis on this, however. Unlike me he has some idea of what he’s talking about.

Yes, this decision is by no means final, and certainly doesn’t decide if the soldier will be found to be a refugee. However, it’s made it easier for US soldiers to make the case that they qualify as refugees. The Board had required that they had to have been told to participate in war crimes or crimes against humanity. The Court says that they have to show that they have been given orders that are “contrary to the basic rules or norms of human conduct."

That’s still a major thing for the applicant to have to prove.

And, there’s then the other part of the refugee analysis, which I think may be the more difficult one to show - would the applicant be able to make the case that the US doesn’t provide sufficient legal protections for him? That’s a big part of the refugee analysis, and I would think that the feds can make a good case that the US system provides adequate legal protections.

However, the case is significant because some commentators had interpreted the decision by the SCC last fall as a blanket “US soldiers can’t be refugees”. This case shows it’s not that black and white.

Will be interesting to see if the feds appeal to the Federal Court of Appeal, and if so how that court deals with it.

News item today: U.S. Deserter could qualify as refugee: Court

Two decisions in the space of a week. Could be a trend. Curious to see if the feds appeal them to the Federal Court of Appeal.

Actually, it is inevitable that the court makes a ruling to the effect “do it over again.” The court does not engage in a complete review of the refugee claim but instead conducts a review of the Refugee Board’s process. This time it found that the process was wrong to categorically exclude deserters of the US military from Refugee eligibility.

It is not an unusual outcome. There are many aspects of military service worldwide which create the conditions necessary to found a refugee claim. In making a claim, whatever your background; what needs to be done is bring yourself within the ambit of (from memory):

  • Well founded fear of persecution for reason of race, religion, ethnicity, political belief or membership of a particular social group -

I may have left some out here, but you get the gist. It is ‘persecution’ and* ‘membership of a psg’ that are the most argued. Certainly though, the many, complusory military service cases give a backdrop to base the current claims in Canada.

*(won’t do ampersands, how odd)

And now the court has ruled in another claimant’s case, and he is set to be deported to the States, turned over to his unit, and presumably court-martialed.


I was just coming to add this to the thread. He’s now back in the USA: American war resister sent back home. Seems like there’s some inconsistency in approach - I’m curious to see how it shakes out in the IRB in future cases.