According to his lawyer Alyssa Manning, this is the 11th time since 2008 that the courts have ruled in favour of U.S. war resisters.
It’s the first time, however, that the courts have not simply been moved by evidence they wouldn’t get fair treatment in the U.S. thanks to an outdated military justice system and the fact that punishment tends to be tougher the more vocal and political the deserter. In this case, she said, the court was also compelled by evidence that the U.S. military has violated international conventions on warfare.
That said, Manning is not convinced the ruling will necessarily result in asylum for the dozens of U.S. war resisters who haven’t already been deported and subsequently imprisoned, but still remain in Canada at the mercy of either the Immigration and Refugee Board (IRB) or Citizenship and Immigration. She argues the Conservative government has made it clear that war resisters are criminals and she questions the independence of the arm’s-length IRB as a result.
“It’s definitely a good decision from the war resister’s perspective given the clear direction the court does provide to immigration decision makers and I think that legally, the evidence is very clear that these men and women meet the test for somebody who is entitled to refugee protection,” she said.
“That being said, unfortunately the Conservative government has made its position very clear and has even issued a directive to all immigration officers called Operational Bulletin 202 that has instructed them to consider persons such as Mr. Tindungan as criminals despite what international law says about a soldier’s rights, or even obligation, to refuse condemned military conduct.
“As long as there is clear instruction coming from, I guess the minister of Citizenship and Immigration Canada, that these people should not be given status, it’s going to be hard for them to win despite all of the evidence,” she added.
The 25-year-old California man deserted the U.S. army in 2008 following a 15-month tour in Afghanistan after learning he would be redeployed to combat instead of reassigned as requested. According to the court ruling, his decision was prompted by a “moral objection” to certain things he “witnessed and participated in,” including the torture of detainees, violent house raids on civilian homes, “indiscriminate and routine” firing into populated civilian areas and the strapping of dead insurgents to the front of U.S. military vehicles as a form of intimidation.
He is now married to Canadian Nicole Burton, living in Toronto and employed as an iron worker.
“I’m pretty determined to stay here,” he said in an interview Tuesday. “Me and my wife, we want to start a family here in Canada and I’ve made it my home. I’ve made a lot of friends, a lot of people I consider family.
Tindungan said he’s encouraged by the decision but likely to “take things in stride” given the government’s position. Still, he’s “very happy that one of the highest courts in Canada” found the board erred by not considering the “massive amounts of documentation about breaches of the Geneva convention” he put forward.
“I also feel satisfied that the Federal Court also sees the United States military justice system is outdated and that if I were to go back to the United States military, that I would be treated unfairly and I wouldn’t get a fair trial,” he said.
“Regardless of the outcome, I’m trying to stay motivated and trying to stay confident.”
Immigration Minister Jason Kenney came under fire for calling U.S. war deserters “bogus refugee claimants” in 2009 when Kimberly Rivera, an Iraq war veteran and the first female deserter to flee to Canada, was first ordered to leave the country. She was finally was deported after exhausting all her options last fall.
On Tuesday, a spokeswoman for the minister noted claims are assessed on a case-by-case basis by the “independent” IRB, that all of them have been rejected so far and that all of those rejections were ultimately upheld by the Federal Court.
“We do not believe that President Obama’s administration subjects American soldiers to persecution,” Alexis Pavlich added.
“Military deserters from the democratic United States are not refugees under the internationally accepted meaning of the term.”
NDP immigration critic Jinny Sims argued the Conservative government approaches these cases with a certain “ideological bent” or bias. She said the Operational Bulletin issued by CIC raises serious questions about transparency and whether each case is in fact “dealt with on its own merit.”
Meanwhile, a 2008 Angus-Reid poll found 67 per cent of Canadians approve of granting permanent residency to U.S. military deserters.
Manning expects it will take at least six months before Tindungan gets a new hearing before the IRB.
Original Article
Source: canada.com
Author: Tobi Cohen
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