Jeremy Hinzman, his wife, and their son, seek refugee protection in Canada. Mr. Hinzman enlisted in the US military and during his course of training and service gradually came to the conclusion that he could not participate in offensive operations. He sought conscientious objector non-combatant status from the US military while he was deployed in Afghanistan. His application was refused on the basis that he was willing to conduct defensive operations as a combatant, although not willing to conduct offensive operations as a combatant. Mr. Hinzman then resumed his regular military duties and training. When he received notice of his unit's deployment to Iraq, he left the military without leave and came to Canada with his Family.

Mr. Hinzman claims that he is a conscientious objector. He fears that as a result of his desertion from the US military, he will be prosecuted and any punishment he faces as a result would be persecution for following his conscience. He also asserted that his likely sentence as a result of a court martial would amount to cruel and unusual treatment or punishment.

Counsel to the Solicitor General of Canada (S-G) argued that Mr. Hinzman had a heavy legal burden to overcome in establishing his claim since the US is a democratic state. In addition, the S-G submitted that Mr. Hinzman does not meet the criteria of a conscientious objector. The S-G also asserted that Mr. Hinzman failed to demonstrate that the punishment he would likely receive for desertion from the US military would be excessive and amount to cruel and unusual treatment or punishment.

The Refugee Protection Division (RPD) found Mr. Hinzman, his wife and son not to be Convention refugees or persons in need of protection and rejected their claims for refugee protection.

The RPD found that the claimants would be afforded the full protection of a fair and independent military and civilian judicial process in the U.S. As a result they had not rebutted the presumption of state protection and their claims for refugee protection must fail. The RPD also dealt with other matters in the public interest as they had been raised, including that Mr. Hinzman was not a conscientious objector and that the punishment Mr. Hinzman would likely receive as a result of his desertion was not excessive or disproportionately severe.

With respect to the claims of Mr. Hinzman's wife and son, the RPD found that there was no evidence to support their claim that they would face a serious possibility of persecution in the US as a result of being part of Mr. Hinzman's family, nor was there any evidence to support their claim that they would face serious harm as a result of any punishment Mr. Hinzman may receive as a result of his desertion from the US military.

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