Lesbian U.S. deserter's case must be reviewed: court
Ruling provides direction for refugee board: lawyer
Last Updated: Friday, November 20, 2009 | 6:47 PM ET
CBC News
Bethany Smith said Friday that the ruling is a "great relief." (CBC)The Federal Court says the refugee board must reassess the case of a lesbian soldier who deserted from the U.S. army and fled to Canada, saying the board made mistakes in rejecting her bid to seek refugee status.
Judge Yves de Montigny said the Immigration and Refugee Board (IRB) erred in determining whether Pte. Bethany Smith, also known as Skyler James, had an objective basis for her fear of persecution.
"My first reaction was 'Oh my god, yes!'" said Smith Friday in Ottawa, where she now lives. "For now, it's like a great relief."
Smith fled to Canada in September 2007 from a U.S. army base in Fort Campbell, Ky. She applied for refugee status in October 2007, saying she was harassed and threatened by fellow soldiers over her sexual orientation and feared that her life would be in danger if she were deported and returned to the army.
The IRB rejected Smith's claim in February 2009. One of the reasons the board cited for rejecting her claim was that Smith had not done enough to seek protection from her own state and did not go to higher-ranking officials for help. Smith had testified that she felt senior officials were "in on it."
De Montigny said the IRB should have taken into account "the particular environment" an applicant finds themselves in.
"It is clear that in the army reigns an atmosphere of unconditional obedience to the hierarchy," de Montingy wrote. "The board member did not seem to be sensitive to this special context."
De Montigny said the IRB also erred by concluding that the beating death of a private in 1999 at the same Kentucky army base where Smith was serving, which was believed to have been motivated by rumours the victim was gay, was an isolated incident.
De Montingny also rejected the IRB's finding it was unlikely Smith would be punished for desertion because 94 per cent of deserters are dealt with administratively.
He ruled that that does not "fall within the specialized knowledge of the board."
Smith's lawyer, Jamie Liew, said the decision provides direction to the next immigration and refugee board to hear the case.
"It was a clear decision and it gives us hope that another adjudicator could look at this in a more nuanced way," she said.
However, she said it is hard to say what Smith's chances will be before the next board.
Other U.S. deserters seeking refugee status in Canada have failed in their appeals to Canadian courts, and some are serving prison terms after being deported. However, Smith and Liew argue that Smith's case is different, as she fled due to persecution based on her sexual orientation. Most other war deserters said they fled because they opposed the war.
With files from The Canadian Press
