Executive Summary

Application to Vacate the Determination that Josip Budimcic is a Convention Refugee

The respondent, Mr. Budimcic, was determined to be a Convention refugee by a Visa Officer in Belgrade in 1994 and he and his family were issued Landed Immigrant Visas. In 2007, the Minister of Public Safety and Emergency Preparedness filed an application to vacate the refugee determination on the basis that Mr. Budimcic misrepresented and withheld material evidence relating to his residence, work and military history. The Minister also presented evidence that the respondent had been convicted in absentia of war crimes and crimes against humanity by a Croatian Court in 1995 and argued that he withheld information regarding his record of criminal charges. The Minister alleged that in October 1991, Mr. Budimcic participated in the abuse and torture of captured Croatian soldiers while he was a member of the Yugoslav People's Army. More specifically, the Minister alleged that Mr. Budimcic was present when twelve members of the Croatian military unit were captured in a forest between Sarvas and Tenja and two of them were executed. Four of the survivors identified Mr. Budimcic as having participated in the mistreatment, which included physical and psychological abuse. The panel dealt with three issues: (1) Whether Mr. Budimcic directly or indirectly misrepresented or withheld material facts relating to a relevant matter, which, if known to the Visa Officer who considered the application for refugee status in 1994, could have resulted in a different determination; (2) whether Mr. Budimcic should be excluded from refugee protection pursuant to section 1 F(a) and 1 F(b) of the United Nations Convention Relating to the Status of Refugees; and (3) whether there was other "untainted" evidence to support the original visa officer's decision to grant refugee status to Mr. Budimcic. With respect to the first issue, Mr. Budimcic admitted he misrepresented and withheld certain relevant information. With respect to the second issue, exclusion, the evidence presented by the Minister, namely the written statements of the four witnesses and the foreign conviction was held to be deficient and unreliable. The panel found that while Mr. Budimcic was present at the scene, he was neither a perpetrator nor a conspirator and that his mere presence did not amount to complicity. He was there for only a few minutes and the situation was beyond his control. Therefore, there were no serious reasons to consider that Mr. Budimcic committed a war crime, a crime against humanity or a serious non-political crime. As to whether there was other sufficient "untainted" evidence that justified the conferral of refugee status at the time of the determination by the Visa Officer, the panel concluded that there was such evidence. In particular, the fact that Mr. Budimcic was in a mixed marriage (Serbo/Croatian) and that at that time in the history of the former Yugoslavia that would have been sufficient evidence to make him a refugee. The vacation application was dismissed and the prior determination of Convention refugee status was held to stand. MPSEP v. Budimcic, Josip, RPD VA7-00522, Pattee, November 19, 2008.