Cibaric v. Canada ( Minister of Citizenship and Immigration )
IMM-1078-95
Noël J.
18/12/95
15 pp.
Judicial review of CRDD decision applicant not Convention refugee because serious reasons for considering had committed crimes against humanity-"Convention refugee" as defined by Immigration Act, s. 2(1) excluding any person to whom Convention not applying pursuant to section E or F of Art. 1-Art. 1F(a) providing Convention not applying to persons with respect to whom serious reasons for considering committed crime against humanity-Applicant citizen of Serbia/Montenegro, now Yugoslavia-Croatian and Catholic-On visit home from school in Croatia, conscripted into Yugoslavian Army-During time served at front lines, ordered to destroy homes, shot at civilians several times-Spent 15-day leave resting at parents' home-Returned to barracks where stayed until end of service-Following discharge from army, applicant serving in reserves, attending university for 11 months before coming to Canada, claiming refugee status-Applicant submitting his degree of involvement insufficient to indicate possessed mens rea required for commission of war crimes or crimes against humanity-Also submitting CRDD misconstrued meaning of "war crimes" or "crimes against humanity"-Alleging acts described more aptly described as acts of war than as crimes against humanity-Cases considering degree of complicity in war crimes, crimes against humanity, indicating three questions to be answered in affirmative before person excluded by reason of commission of crime against humanity-(1) Sufficient evidence from which Refugee Division could reasonably find crimes against humanity committed by army and such actions regular part of army's operation-Evidence applicant witnessing killing of civilians, four or five times, participating in destroying about thirty homes, looting personal property-(2) Same evidence supporting finding applicant knowingly participated in army's operation, lending it his active support-(3) Applicant failing to disengage himself from army at earliest opportunity, consistent with safety for himself-Applicant having clear opportunity to leave army while on 15-day leave-Would have exposed himself to 10 to 20 years' imprisonment for desertion-Harm to which would have exposed himself less than harm actually inflicted on victims: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.)-Application dismissed-Immigration Act, R.S.C., 1985, c. I-2, s. 2(1)-United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a).