The application to review last month's Immigration and Refugee Board decision, which found Jeremy Hinzman had not shown a well-founded fear of persecution if returned to the United States, was filed Thursday with the Federal Court.
Hinzman wants the court to set aside the board's decision. He also wants the court to declare him a refugee, or at least refer the matter back to the board for further consideration.
The application cites several grounds, including "that the board erred in law in misapplying, misconstruing and ignoring relevant evidence." It says the board made "patently unreasonable findings of fact" and failed to "observe the principles of natural justice."
Hinzman also complains the board was wrong to dismiss as irrelevant his argument that the invasion of Iraq was illegal.
During his three-day refugee hearing in December, Hinzman said any violent acts he would have committed had he gone to Iraq would have amounted to an atrocity because the war itself was illegal.
He said the U.S. military regarded all Arabs in the Middle East - Iraqis in particular - as potential terrorists to be eliminated and were referred to as "savages." His case was bolstered by a former U.S. marine who said trigger-happy American soldiers in Iraq killed unarmed women and children, and murdered other Iraqis, in violation of international law.
Noah Novogrodsky, a law professor and director of the Centre for International Human Rights at the University of Toronto, said the board should have explored whether or not the behaviour of American soldiers in Iraq amounted to war crimes.
Instead, the board decided civilian casualties were "collateral damage" of the war and that human-rights abuses, such as those inflicted on Iraqi inmates by U.S. soldiers at Abu Ghraib prison in Baghdad, were isolated incidents, Novogrodsky said.
"It would be good to know when enough of these isolated incidents become a pattern and practice of human rights abuses that would be manifestly illegal to commit," he said.
"I don't think we should have a kind of 'I know it when I see it' analysis here of what constitutes war crimes."
Had the board decided that those abuses did constitute war crimes, it would have been easier for Hinzman to argue that efforts to prosecute him for refusing to deploy to Iraq would have amounted to persecution, Novogrodsky said.
Hinzman, 26, faces court martial for deserting his regiment in January 2004, just days before being deployed to Iraq.
Hinzman enlisted voluntarily in the U.S. army for four years in November 2000. He was a specialist with the 82nd Airborne Division in Fort Bragg, N.C., until he [became a war-resister].
Canadian Press Updated: Thu. Apr. 7 2005 9:53 PM ET