US Military Justice System on Trial: Federal Court overturns the decision of the Refugee Protection Division to Deny an American “Draft Dodger” refugee status in Tindungan v Canada, 2013 FC 115

Jules Guiniling Tindungan joined the US army as a young man suffering from financial troubles. After a 15 month deployment in Afghanistan, he deserted his unit upon return to the US. Believing that the actions of the US military in Afghanistan were in violation of the Geneva Convention, he began researching online and came across the War Resisters Support Campaign, which assisted him in coming to Canada in June 2008. Once here, he claimed refugee protection and began speaking publicly to news outlets about his opinions on the US military.

In May 2012, the Refugee Protection Division (“RPD”) denied his application to be deemed either a Convention Refugee or a Person in Need of Protection under section 96 and 97 of the Immigration and Refugee Protection Act, SC 2001 c 27. The RPD found that Tindungan had not rebutted the presumption of state protection which is afforded to democratic states, nor had he established on a balance of probabilities that he would be at risk of cruel and unusual punishment if he were returned to the US. While the applicant would suffer some negative consequences of returning to the US, these consequences would not rise to the level of “persecution”

The facts are remarkably similar to those in Vassey v Canada (Minister of Citizenship and Immigration), 2011 FC 899 [Vassey]. Vassey was a member of the same unit as Tindungan and also deserted to Canada and was subsequently denied refugee status by the RPD.

In Tindungan v Canada, 2013 FC 115, the Federal Court overturned the decision of the RPD on the basis that its failure to analyze the evidence concerning the independence and impartiality of the US court-martial system was unreasonable.

Tindungan appealed the decision of the RPD to the Federal Court on the following grounds:

1. Did the RPD err by finding that a judicial system which fails to meet basic internationally recognized fairness and due process requirements can nonetheless provide adequate protections?
2. In regards to state protection, did the RPD err by ignoring evidence that directly contradicted its findings?
3. Did the RPD err in law when interpreting both section 171 of the UNHCR Handbook and foreign law related to raising a defence in the US court-martial system?
4. As regards differential punishment, did the RPD make unreasonable conclusions without regard to, and not supported by, the evidence?

After reviewing the evidence, the Federal Court rejected the decision of the RPD as unreasonable.

The Impartiality and Independence of the US Military Justice System

Considerable evidence from expert witnesses on the US Military Justice system was presented on appeal. All the expert witnesses agreed that the US military justice system does not conform to Canadian standards as set by R v Généreux, [1992] 1 SCR 259 [Généreux]. In that case, the Supreme Court of Canada found that the principle of judicial independence applies to military courts. The is similar to the requirements of military courts in the United Kingdom.

Expert witnesses for the applicant argued that, because it failed the Généreux test (notably because of the important role played by the military commander) the US military justice system is thus unfair. Countering them, Professor Hansen argued that while the US military justice system failed to meet the Généreux standard, this did not render it “unfair”.  Professor Hansen did not identify against what standards he was measuring “fairness”. The RPD relied heavily on Professor Hansen’s evidence.

The Federal Court found that by preferring the evidence of Professor Hansen without clearly stating what standards it was using to assess fairness and procedural adequacy, the RPD committed a reviewable error. In reaching this determining the Court stated that it is an error in law to conclude that a system which fails to meet basic fairness standards that are internationally recognized to be fundamental to any tribunal system can, nevertheless, provide adequate state protection. It went on to find that decisions made under the Immigration and Refugee Protection Act must be consistent with the Charter and Canada’s international human rights obligations.

Contradictory Evidence

Throughout its ruling, the Federal Court criticized the RPD for viewing the Applicant’s personal experiences as isolated incidents that were not condoned by the USA and were not systemic, despite the objective documentary evidence submitted confirming that the opposite was true. The RPD’s failure to analyze this contradiction was a reviewable error.

Section 171 of the UNHCR Handbook

On this point the Court considered whether the Tindungan would be able to put forward a defence under section 171 of the UNHCR Handbook to the charge of desertion. Section 171 provides as follows:

“Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.”

 The RPD had found that the unavailability of a defence based on section 171 of the UNHCR Handbook did not affect state protection. The Federal Court found this was unreasonable, and noted thatthe RPD had failed to follow the precedent set by Vassey. Vassey had held that the availability of a defence based on section 171 “goes directly to the availability of state protection”.

Differential punishment

The Court recognized that deserters who speak out publicly against the war in Iraq or Afghanistan are subject to differential punishment in the US. Specifically, while the majority of deserters are administratively discharged, those who speak publicly agains the war are more frequently selected to be court-martialled and prosecuted for desertion.

The court found that the US military justice system has no mechanism to protect someone when prosecutorial discretion is exercised in a biased and inappropriate way because of their political opinions. Accordingly the RPD’s decision on this point was unreasonable.