Dusko Jelaca sought judicial
review of a visa officer’s refusal of his temporary resident visa application.
The officer found him inadmissible under paragraph 35(1)(a) of the IRPA because
there were reasonable grounds to believe that his service in the Bosnian Serb
Army involved complicity in crimes against humanity during the siege of
Sarajevo. The Federal Court upheld both the inadmissibility finding and the
fairness of the process.
Key Principle
For inadmissibility under
paragraph 35(1)(a) of the IRPA, the Minister must establish reasonable grounds
to believe that an individual voluntarily made a significant and knowing
contribution to an organization’s crime or criminal purpose. Mere association
is insufficient, but personal commission of the underlying crimes is not
required. The assessment may consider the person’s duties, location, length of
service, knowledge, recruitment circumstances and opportunities to leave.
Background
Jelaca, a citizen of Bosnia and
Herzegovina, served in the Bosnian Serb Army, known as the VRS, from August
1993 until January 1996. He was stationed as a guard at a pedestrian bridge
over the River Miljacka in Sarajevo’s Grbavica neighbourhood.
Following an earlier visa refusal
that was remitted for reconsideration, Jelaca was interviewed in November 2016
and later received a procedural fairness letter identifying concerns and
open-source evidence. The officer ultimately found numerous contradictions in
his statements and preferred objective documentary evidence concerning the VRS
and conditions in Sarajevo.
The officer concluded that
Jelaca’s bridge-guard duties supported VRS efforts to prevent civilians from
fleeing and humanitarian aid from entering, and that he knew crimes against
humanity were occurring.
Court Findings
• Reasonable Grounds Supported
the Complicity Finding
The Court emphasized that
“reasonable grounds to believe” is a lower standard than the balance of
probabilities. Jelaca served approximately two and a half years, including
during a period of intense conflict, near the area known as “sniper alley.” He
acknowledged awareness of war crimes and gave inconsistent accounts concerning
civilian use of the bridge and his responsibilities toward people attempting to
cross.
• Low Rank Did Not Prevent a
Finding of Significant Contribution
Jelaca argued that he held the
lowest military rank, had no authority and personally committed no crimes. The
Court nevertheless found it was open to the officer to conclude that his
activities constituted a voluntary, significant and knowing contribution. His
guard duties were directly connected to controlling movement during the siege,
and there was no indication that he attempted to leave the VRS after joining.
The Court declined to reweigh the officer’s treatment of his cousin’s
supporting letter.
• Procedural Fairness Did Not
Require Disclosure of Every Source Document
The procedural fairness letter
identified four open-source articles and reproduced relevant excerpts. Although
Jelaca could locate only three and was not provided the fourth upon request,
the Court found no fairness breach. The information disclosed sufficiently
informed him of the case he had to meet and provided a reasonable opportunity
to respond. Procedural fairness did not require disclosure of every underlying
document relied upon.
Outcome
The Federal Court dismissed the
application for judicial review, finding that the inadmissibility determination
was reasonable and the process procedurally fair. No question was certified for
appeal.
Case
Citation:
Jelaca v. Canada (Citizenship and Immigration), 2018 FC 887 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
