Lalaj v. Canada (Minister of Citizenship and Immigration)

BETWEEN:

GENCI LALAJ

Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER

(Delivered orally from the Bench, at Toronto,

Ontario, on Tuesday, December 19, 2000)

SIMPSON J.

[1] This is an application pursuant to section 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") of August 24, 1999, wherein the Board determined that the Applicant was not a Convention refugee.

The Issues

[2] The issues are: (1) whether the Board erred in ruling that the Applicant was excluded from Canada's protection under the United Nations Convention Relating to the Status of Refugees (the "Convention") pursuant to Article 1F(a)¹ (crimes against humanity); and (2) whether the Respondent failed to disclose all relevant information on the issue of exclusion.

The Facts

[3] The Applicant is a citizen of Albania who taught high school for two years from 1994-96 after obtaining a university degree in electronics. In 1991, he joined the Democratic Party and he worked as an organizer for the party during his university and teaching years. His brother-in-law and his father were also active in the party and it formed the government of the day.

[4] In 1994, the Applicant responded to a newspaper advertisement and took a position as a sergeant with SHIK, which was the Albanian secret service. It worked in conjunction with the Democratic Party and its government. By 1996, the Applicant had earned the rank of major and had become responsible for sixty employees who engaged in electronic surveillance for SHIK.

[5] In December of 1996, the Applicant was hospitalized and he asked to resign from SHIK for health reasons. In November and December of that year, a number of financial schemes known as "pyramids" collapsed and many Albanians lost their life savings. Because the Democratic Party was held responsible, a violent revolt against the government occurred in January and February of 1997.

[6] It is uncontested that, both before and during the revolt, SHIK committed human rights abuses in its dealing with opponents of the Democratic Party and the government. Although the Applicant never directly participated in any of SHIK's abusive activity, the Board concluded that he was an accomplice because he oversaw the information-gathering activities of SHIK and because SHIK used the evidence his department collected to identify opponents of the government.

Discussion and Conclusions

Issue One

[7] I have not been persuaded that the Board erred when it decided that the Applicant was an accomplice as described in Article 1F(a) of the Convention. In my view, the Board was entitled to conclude that the Applicant was fully aware of the actions of SHIK and of the important role his department's surveillance played in SHIK's activities. The Applicant was a well-educated major in the secret service with strong ties with the Democratic Party, and I agree with the Board that it is implausible that a man in his position, in a society with a relatively small educated elite, could be unaware of the purposes for which his department's surveillance was being used.

[8] I have also concluded that the Applicant's resignation from SHIK for health reasons is of little consequence. He did not resign because he disavowed the actions of SHIK and the Democratic Party during the revolt, and it was the surveillance that his department collected that helped SHIK counteract the revolt. After his recovery, he continued to work for the Democratic Party and campaigned for it in the subsequent Albanian elections.

Issue Two

[9] On the issue of the Minister's non-disclosure of all relevant information, I have found that there is no evidence before me to support the Applicant's submissions, and I am satisfied that there was no failure of natural justice.

[10] For all these reasons, an order has been made dismissing the application.

(Sgd.) "Sandra J. Simpson"

Judge

Toronto, Ontario

December 19, 2000

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¹ Schedule F of the Act