A-398-80
Marek Musial (Applicant)
v.
Minister of Employment and Immigration (Re-
spondent)
Court of Appeal, Thurlow C.J., Pratte J. and
Culliton D.J.—Vancouver, June 8 and 12, 1981.
Judicial review — Immigration — Appeal from refusal by
Immigration Appeal Board of application for redetermination
of Convention refugee status — Applicant jumped ship
because he was politically opposed to fighting in Afghanistan
and therefore was unwilling to serve in the Polish military —
Applicant alleges that his refusal to serve in the military
would result in punishment which would amount to persecu
tion of his political opinion — Board concluded that there
were not reasonable grounds to believe that the claim could, on
the hearing of the application, be established — Applicant
alleges that Board applied too narrow an interpretation of the
definition of Convention refugee — Whether Board erred in
law — Application dismissed — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 2(1), 70(1), 71(1) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Andrew Wlodyka for applicant.
Alan Louie for respondent.
SOLICITORS:
Boucher & Company, Vancouver, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: The applicant is a young Polish
seaman who left his ship when it arrived in Van-
couver on January 9, 1980. His application for
redetermination under subsection 70(1) of the
Immigration Act, 1976, S.C. 1976-77, c. 52, of his
claim for Convention refugee status, following an
unfavourable decision by the Minister, was refused
by the Immigration Appeal Board on the basis
that there were not reasonable grounds to believe
that the claim could, on the hearing of the applica
tion, be established.
The reason given by the applicant for leaving his
ship was that he was subject to call for military
service on his return to Poland and that he was
unwilling to engage in that service because of the
chance that he might be required to serve in
Afghanistan in the cause, which he could not
support, of subjugating the Afghan people to com
munist domination. But for that he would have
been prepared, though reluctantly, to submit to his
being called for military service in Poland.
The result of his refusal to serve in Afghanistan,
if he were required to serve there, would be pun
ishment which, in the submission made on his
behalf, would amount to persecution for his politi
cal opinion.
His fear of punishment for refusal to serve
anywhere that he might be required to serve may
be well founded, as may also be his fear of punish
ment in Poland for having left his ship. On the
other hand, it may be open to question whether a
fear that is based on the bare possibility of his
being required to serve in Afghanistan can be
regarded as well founded.
The question raised by the present application is
whether the Board erred in law in reaching its
conclusion. In discussing the question of the appli
cant's claim based on fear of persecution by reason
of his political opinion, the Board said:
The main reason that Mr. Musial has given for seeking
refugee status has to do with his imminent call-up to the Polish
army to complete his period of compulsory military service. In
connection with this, there is the fear that he might be sent to
Afghanistan to fight in a war for which he has no sympathy.
The following exchange shows that despite his other claims of
persecution, it is the question of military service that drove him
to seek refugee status. The following exchange viz:
"Q. ... When you signed on the ship it was your intention to
return to Poland, but you found out about the Afghanis-
tan problem?
A. Yes, that's true."
The Board had dealt with the question of escaping compulso
ry military service before, in this context.
In the Kamel case [Kamel (I.A.B. 79-1104), Scott, Trem-
blay, Loiselle, August 1, 1979 (See CLIC, No. 15.11, May 28,
1980)] the applicant was in a similar position to Mr. Musial in
that he had left his country when due for military service and
was afraid he would be sent by his country, Egypt, to fight
against the Israelis. The decision, in part, reads as follows:
"It is obvious that disciplinary action will be taken against
Mr. Kamel when he returns to his country, but any other
citizen in the same situation would suffer the same
consequences.
The Convention does not contain any sections dealing with
army deserters or conscientious objectors."
While the Board sympathises with this young man's decision
to avoid military service which is abhorant [sic] to him on
moral grounds, we do not find that this is a matter which comes
under the definition of Political Refugee as contained in the
Act.
For the above reasons, the Board is of the opinion that there
are not reasonable grounds to believe that the claim of the
applicant that he is a Convention Refugee within the meaning
of Section 2(1) of the Immigration Act, 1976, could, on the
hearing of the application, be established.
The contention put forward on the applicant's
behalf was that the Board applied too narrow an
interpretation of the definition of Convention
refugee; that in relation to political opinion it had
restricted the definition to situations where the
punishment feared is meted out only on the basis
of the holding of a political opinion. It was said
that in considering the case of a person who delib
erately incurs the penalties of a law of general
application to anyone subject to the law of his
country, regardless of his political opinions, the
motive of the person concerned for breaking the
law must nevertheless be considered and if such
motive is based on a political opinion held by him,
he may qualify as a Convention refugee. The
submission, as I understood it, was that such a
person, when subjected to the punishment he has
incurred for breach of the law, would, neverthe
less, be persecuted for his political opinion within
the meaning of the definition of Convention
refugee and that a well-founded fear of such pun
ishment is sufficient to meet the requirements and
qualify the person as a refugee.
While there may be sympathy for the appli
cant's attitude and for his plight, I do not think the
case is one of the Board having failed to consider
the applicant's motives or of its having ruled that
such motives were not relevant. While the Board's
reasons, which were dated some three weeks after
the decision was pronounced, are perhaps ineptly
expressed and give the impression that in the
Board's view army deserters and conscientious
objectors do not fall within the definition, I do not
read the reasons as meaning anything more than
that army deserters and conscientious objectors
are not, as such, within the definition. That is, as I
see it, far from saying that because a person is an
army deserter or a conscientious objector he
cannot be a Convention refugee and I do not think
the Board has made any such ruling. What the
Board appears to me to have done is to point out
that army deserters and conscientious objectors
are not dealt with as such by the definition and
then to go on to consider the applicant's case on its
merits, including the applicant's motives, and to
conclude that in the case before it, the applicant's
objection to serving in Afghanistan, if called upon
to do so, was not sufficient to differentiate his case
from the case of any other draft evader and thus to
form its opinion that there were not reasonable
grounds to believe that the applicant's claim for
Convention refugee status could be established.
Having thus addressed the question which sub
section 71(1) requires the Board to consider and
having considered the facts, including the appli
cant's motives, I do not think it can be said that
the Board erred in law in forming its opinion.
I would dismiss the application.
* * *
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is a section 28 application to
review and set aside a decision of the Immigration
Appeal Board under subsection 71(1) of the
Immigration Act, 1976 determining that the appli
cant is not a Convention refugee.
The applicant comes from Poland. He does not
want to return there because, if he did, he would
be called up for military service and, in all likeli
hood, would desert from fear of having to serve in
Afghanistan, which would be against his political
views. He would then face, like all his compatriots
who fail to perform their military obligations, the
risk of prosecution and punishment for evasion of
military service.
Counsel for the applicant made only one serious
attack against the decision of the Board. He said
that the Board erred in law in assuming that the
applicant's fear of prosecution and punishment for
evasion of military service was not a fear of perse-
cution which could make him a Convention
refugee within the meaning of subsection 2(1) of
the Immigration Act, 1976. This assumption, says
counsel, is ill-founded because, in his view, the
punishment of a person having evaded military
service must be considered as persecution for
political opinions in all cases where the refusal to
perform military duties is motivated by political
opinions. In support of that contention, he invoked
decisions of European tribunals adopting what he
called a "liberal interpretation" of the definition of
the word "refugee" in the International Conven
tion.
That argument must, in my view, be rejected.
The "liberal interpretation" of the definition of the
word "refugee" appears to me to be incompatible
with the requirement of that definition that a
refugee have "a well-founded fear of persecution
for reasons of race, religion, nationality, member
ship in a particular social group or political opin
ion". A person who is punished for having violated
an ordinary law of general application, is punished
for the offence he has committed, not for the
political opinions that may have induced him to
commit it. In my opinion, therefore, the Board was
right in assuming that a person who has violated
the laws of his country of origin by evading ordi
nary military service, and who merely fears pros
ecution and punishment for that offence in accord
ance with those laws, cannot be said to fear
persecution for his political opinions even if he was
prompted to commit that offence by his political
beliefs.
For these reasons, I would dismiss the
application.
* * *
CULLITON D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.