When Sarajevo was pockmarked and seized in collapse, people began to believe in destiny.
It happened to Marko when a bullet missed him by no more than a foot and grazed the forehead of the man in step beside him. Then a dead artillery shell ricocheted around his apartment and spun to a stop, unexploded. A rocket-propelled grenade crashed into the south side of the apartment and did explode, but it was one wall behind his family’s north-facing rooms. By the time he escaped in 1994, Marko counted six times that he nearly lost his life.
Name changed to protect identity.
Would Marko get in to Canada today?
Claim analysis by Peter Showler
Marko made his claim for refugee protection in 1994 in Austria. He was subsequently brought to Canada under Canada’s refugee resettlement program. That program gave protection to approximately 5,000 Bosnians during the course of the Bosnian war, from 1992 to 1995. At the time, the Canadian approach was generous, recognizing the real dangers that many Bosnians faced rather than focusing on complicated questions about nationality that arose from the fractured Yugoslavian federation.
If Marko made his refugee claim today, in 2014, under Canada’s new refugee system, would he be successful?
In order to answer the question meaningfully, we must make the following assumptions:
- That the country conditions in Bosnia and Serbia are similar to 1994 circumstances
- That Marko managed to reach Canada where he made his refugee claim at the border.
Marko’s story and claim are both complicated. The cornerstone of a refugee claim is the country of nationality. A refugee claim must be based on a fear of persecution from a particular country of nationality. Marko is a person of ambiguous nationality, fleeing a civil war situation. His country of nationality had been Yugoslavia, but with the violent collapse of that nation state, is he a Bosnian citizen? As an ethnic Serb, does he have a right to Serbian citizenship? If so, does he also fear persecution in Serbia?
Under Canada’s new system, upon Marko’s arrival at a Canadian airport, here is the most likely scenario:
Marko will be interviewed by a CBSA officer. He does not have a valid passport issued by his country of nationality. Unavoidably, he has had to purchase false documents to reach Canada. He will probably be detained until he is able to establish his true identity. If he has a relative in Canada to swear to his identity, he may be released within days. If there are delays, trying to obtain reliable documents from a war zone, he could be detained two to four months. In that case, he will be transferred to a prison, where he will detained within the criminal population. If he does not speak English, he will be particularly vulnerable.
Although in prison, Marko’s refugee claim will proceed. A hearing will be scheduled for sixty-three days from his arrival. He will have to file a detailed, written claim within fifteen days. From prison, he will have trouble contacting a lawyer. There may be a legal aid lawyer to assist him on a limited basis. If his written claim is not filed within 15 days, his claim will be considered abandoned and he could be deported. If he does manage to file his written claim, Marko will have great difficulty proving his claim while in detention. Access to the prison is notoriously difficult for lawyers, particularly if interpreters must accompany them. The demanding business of understanding the claim, obtaining the documentary evidence and preparing the claimant for his hearing, will be disrupted. If he is still in prison, Marko’s hearing will take place via video-conference. For claimants who don’t understand French or English, it is a disorienting and confusing process.
If Marko is released early, the job of preparing for the hearing is still demanding and the result is still uncertain. Simply being a resident of Sarajevo while it is being bombed during a civil war is not sufficient to establish a claim. Marko must show that he is at risk for a particular reason linked to his: race, nationality, religion, political opinion or membership in a particular social group. In this case, all residents of Sarajevo were at risk. He must show an extra risk, possibly because of his Serbian ethnicity. He will also be closely questioned about his own activities during the war. Unlike 1994, Canada is now far more security conscious. Massive human rights violations were committed by all sides during the war, particularly the Serbian forces. Marko will have to persuade the Board member that he is not a wolf in sheep’s clothing, that he was not shooting the bullets rather than running from them. Not an easy task when the only evidence will likely be his own testimony.
Since 2002, there has been a second basis for refugee protection in Canada. It is Section 97 of the Act, “a person in need of protection”. Unfortunately for Marko, he bumps into a similar problem. To be a protected person, he must show that he is in more danger than others. If he only has a “generalized risk” of being bombed or shot, then he will not be accepted.
If Marko is able to persuade the Board member that, as an Ethnic Serb in Sarajevo, he is at greater risk than others, he must then, also prove that he cannot get protection in Serbia. If he has a right to remain in Serbia, he must seek protection there. Marko will argue that he is a conscientious objector, he does not want to serve in the Serbian military. In recent years, because of American deserters from the Iraqi war, the IRB and the Federal Court have taken a narrow, ungenerous view of conscientious objectors. However, since NATO did oppose Serbian incursions into Bosnia-Herzegovina and Serbian human rights violations were well-documented, Marko’s claim as a conscientious objector may be accepted.
If he is able to be released from detention and find a good lawyer, Marko has a reasonable chance of being accepted as a refugee. If he is kept in jail and unable to find good legal representation, he will probably be denied refugee status. Under the new law, he will not be permitted to remain in Canada for humanitarian reasons and will be deported to Bosnia or Serbia.
Adeline Oliver, told by descendant Leslie Oliver