Date: 20000721
Docket: IMM-1165-99
BETWEEN:
IVAN KAZIMIROVIC
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] As a result of receiving information considered incredible about the Applicant"s military service with the Yugoslav National Army (the "JNA") in 1991 during the seige of the town Vokavar, Croatia, by a decision dated 8 February 1999, the Applicant"s application for permanent residence was denied by a visa officer at the Canadian Embassy in Belgrade.
[2] The evidence upon which the decision was made is stated in the affidavits of the Applicant and the visa officer in support of, and in response to, the present application respectively.
[3] While the precise details of the Applicant"s military service was a central focus of the interviews conducted in respect of the application for permanent residence, the Applicant"s general description of his military service is not disputed, and is that he: completed a year of mandatory military service in Yugoslavia in 1983; received the rank of second lieutenant by 1986 as a result of his university degree; ignored a call in September 1991 to report for military service and, as a result, was forcibly escorted by civilian police officers to the military barracks of the JNA in Rakovica; shipped after two weeks of communications retraining to Negoslavci located approximately 7.5 kilometres from Vukovar; and stationed there for approximately six weeks until November of 1991 when the city was taken over by the JNA from Croatian military forces; and demobilized thereafter.
[4] An important fact that caused high scrutiny of the Applicant"s application for permanent residence is that the visa officer had reason to believe that, during the time of the Applicant"s posting to just outside of Vukovar, war crimes were committed against large civilian populations of that city as people were interrogated, beaten, and in some cases, killed and buried in mass graves. Thus, the visa officer was most concerned to learn whether the Applicant was somehow involved in the crimes that were committed, for if he was, a legal reason would arise for rejecting his application.
[5] Taken from her affidavit, the visa officer"s generally uncontested version of her interview with the Applicant respecting his military service is as follows:
| 8. At the outset of the Interview, I explained to the Applicant that the purpose of the Interview was to establish his admissibility as an immigrant. I explained to him that I had to satisfy myself that he had not been involved in activities that would constitute war crimes, crimes against humanity or common law crimes. I told him this was particularly important in view of the fact that he had been stationed in proximity to Vukovar during the period of September to November 1991 when activities that could constitute such crimes had taken place. |
| 9. During the Interview, I also explained to the Applicant that his previous interview dealt with his evaluation for selection as an independent immigrant and not with his admissibility as an immigrant to Canada. |
| 10. During the Interview, the Applicant provided me with a completed detailed form relating to his activities during the period of September 1991 to November 1991 including his activities relating to his war service. The Applicant also stated that he did not participate in combat nor did he know any officers present in the area of his mobilization other that his immediate supervisor, Sinisa Mikac. |
| 11. During the Interview, the Applicant advised that he had been "forcibly mobilized" in September 1991 by the Yugoslav National Army (the "JNA") and retrained as a telecommunications officer, which had been his occupation in the JNA during his one year compulsory military service in 1983. He advised that after being retrained he was sent to Negoslavci, a town situated approximately 7.5 kilometers from Vukovar. |
| 12. During the Interview, the Applicant indicated that he was a second lieutenant in the reserve and that during his war mobilization he supervised two soldiers. He also stated that he never moved from his post at Negoslavci. |
| 13. During the Interview, I asked the Applicant whether he knew anything relating to the activities of the troops stationed in his area during his mobilization as he was in charge of some radio equipment. The Applicant told me he knew nothing as he never used the radio himself, that being a task for the soldiers he was supervising. |
| 14. During the Interview, I also asked the Applicant if his subordinates reported war activities to him. The Applicant replied that no reports were made to him and, further, that he did not report anything to his own superiors because nothing of importance had been reported to him. |
| 15. During the Interview, I also mentioned the names of persons, including senior JNA officials, alleged to have committed war crimes and crimes against humanity in Vukovar. The Applicant indicated that none of these names were known to him. The Applicant also stated that he had conversations with his subordinates but never about combat or war events. |
| 16. During the Interview, I also asked the Applicant whether he had ever operated the radio. The Applicant stated that he had not. I asked him again whether that was the case despite the fact he had received retraining in the radio operations. He indicated it was. |
| 17. At the conclusion of the Interview, I told the Applicant that I could not believe that, given he had been trained as a telecommunications officer during his compulsory military service, had received recent retraining in that field and was in charge of a telecommunications unit, he did not have any knowledge of war events in the area in which he had been posted. |
[6] Paragraph 18 of the visa officer"s affidavit supplies the reason that the Applicant"s application was rejected:
| 18. At the conclusion of the Interview, I also explained to the Applicant that given his level of education, his position as a telecommunications officer stationed at Negoslavci within eight kilometers of Vukovar and the magnitude of events at Vukovar, I did not find it credible that he did not discuss the siege with any one or that he was not aware of events that were occurring in Vukovar. I further explained that as I did not find him to be credible in regard to his activities during the war, I was unable to establish his admissibility as an immigrant to Canada. I then advised the Applicant that as there was evidence that war crimes and crimes against humanity were committed in the area where he was stationed between September 1991 and November 1991, I would make one last check with the War Crimes Tribunal at the Hague, but unless objective evidence from that source convinced me that his declarations were believable, I would have to refuse his application. |
[7] The visa officer did consult the Hague War Crimes Tribunal who advised that they had no specific knowledge of the Applicant, but wished to interview him about the events in Vukovar.
[8] The visa officer"s stated inability to establish the Applicant"s admissibility to Canada arises from certain provisions of the Immigration Act ( the "Act"): s.8(1) places the burden of proving that a person has the right to enter Canada, or that his or her admission would not be contrary to the Act or its Regulations; s.9(4) allows a visa officer to issue a visa to an applicant where satisfied that doing so would not be contrary to the Act or its Regulations; and s.19(1) prohibits the entry into Canada of a person where there are reasonable grounds to believe that he or she has committed a war crime, or a crime against humanity. 1
[9] In the present case, because the Applicant was not believed, the visa officer found that the Applicant had not discharged the statutory burden upon him. The Applicant argues that the visa officer"s credibility finding is a finding of law, and is thus reviewable on the standard of correctness. I do not accept this argument.
[10] In effect, the visa officer found that the Applicant"s story defies common sense, and, therefore, makes it impossible to grant his application. While it is true that "common" sense might not be common for everyone, I can certainly understand how the visa officer could readily and reasonably come to the credibility finding made. In my opinion, there is no issue of law engaged here. The burden rested with the Applicant to convince the visa officer of his qualifications to enter Canada, and having given what she considered to be an unbelievable story relating to his military service, he simply failed to discharge it.
[11] I find no reviewable error in the visa officer"s decision. Accordingly, this application is dismissed.
(Sgd.) "Douglas Campbell"
Judge
Vancouver, British Columbia
July 21, 2000
APPENDIX
Immigration Act R.S.C. 1985, c.I-2, as am.
| Burden of proof
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
|
Charge de la preuve
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
|
| Issuance of visa
9. (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
|
Délivrance de visas
9. (4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et
aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements.
|
| Inadmissible persons
19. (1) No person shall be granted admission who is a member of any of the following classes:
...
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission.
|
Personnes non admissibles
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
...
j) celles dont on peut penser, pour des motifs raisonnables, qu'elles ont commis, à l'étranger, un fait constituant un crime de guerre ou un crime contre l'humanité au sens du paragraphe 7(3.76) du Code criminel et qui aurait constitué, au Canada, une infraction au droit canadien en son état à l'époque de la perpétration.
|
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Ivan kazimirovic
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 20, 2000
REASONS FOR REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
APPEARANCES:
| Mr. Aleksadar Stojicevic For the Applicant |
| Ms. Helen Park For the Respondent |
SOLICITORS OF RECORD:
McCrea & Associates
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
__________________
1 The provisions cited are quoted in the Appendix to these reasons.
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