TA5-01193

TA5-01193

The claimant's grounds—belief the Iraq war was illegal, fear of killing civilians, fear of death, and dislike of military service—do not meet the UNHCR/Canadian law threshold for refugee protection for a deserter; any sanction for desertion on return would constitute lawful prosecution under military law rather than persecution absent evidence of persecution-level punishment, therefore the claim fails.

Citation
TA5-01193
Parties
Claimant: XXXXX XXXXX; Respondent: Minister
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
22 December 2006
Procedural Posture
Refugee Protection Claim Under IRPA Ss.96 97 / Decision by Refugee Protection Division Following Hearing
Outcome
Claim dismissed; claimant is not a Convention refugee nor a person in need of protection.
Legal Topics
Military Desertion, Conscientious Objection, Persecution Versus Prosecution, Eligibility for Refugee Status, Refusal to Participate in Armed Conflict
Source Language
English
Immigration Law Refugee Law International Humanitarian Law Military Law Military Desertion Conscientious Objection Persecution Versus Prosecution Eligibility for Refugee Status +1 more

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Parties

XXXXX XXXXX

Claimant

Minister

Respondent

Procedural Posture

Refugee Protection Claim Under IRPA Ss.96 97 / Decision by Refugee Protection Division Following Hearing

Legal Issues

  1. 1 Whether the illegality of the Iraq war can ground refugee protection for a volunteer soldier who deserted
  2. 2 Whether fear of participating in combat or of dying in war constitutes persecution
  3. 3 Whether potential punishment for desertion on return to the US would amount to persecution rather than lawful prosecution

Ratio Decidendi

The claimant's grounds—belief the Iraq war was illegal, fear of killing civilians, fear of death, and dislike of military service—do not meet the UNHCR/Canadian law threshold for refugee protection for a deserter; any sanction for desertion on return would constitute lawful prosecution under military law rather than persecution absent evidence of persecution-level punishment, therefore the claim fails.

Court Disposition

Claim dismissed; claimant is not a Convention refugee nor a person in need of protection.

Orders

  • Refugee protection claim of XXXXX XXXXX rejected