Date: 20020205
Docket: IMM-237-02
Neutral citation: 2002 FCT 135
BETWEEN:
ARTUR MORINA
ARIOLA LIKA
Applicants
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants, husband and wife and citizens of Albania, seek a stay of their removal scheduled for tomorrow pending determination of their leave application from a decision of a Post-Claim Determination Officer ("PCDO") who found them not to be members of the Post-Determination Refugee Claimant Class in Canada ("PDRCC") after their failed refugee claims.
[2] To qualify as a member of the PDRCC, the applicants must establish they would be subjected to an objectively identifiable risk to their lives, or extreme sanctions, or of inhumane treatment.
[3] Before the Refugee Division (the "Tribunal"), Mr. Morina said his well-founded fear of persecution arose from two sources.
[4] First, he feared a Mafia boss with whom he crossed paths when Mr. Morina was working for the U.S. Embassy in Tirana in the summer of 1998.
[5] The U.S. Embassy wanted to build a security fence on adjacent property whose ownership was claimed by Mr. Markaj, the Mafia boss. Mr. Morina came on the site to oversee matters. Mr. Markaj threatened him because the U.S. had made no arrangements with him - they were illegally taking his land.
[6] Mr. Morina left the site but came back the next day and was physically beaten by Mr. Markaj's people.
[7] The second source of his fear arises out of his activities in the Royal Party of Albania which had been preceded by his opposition to the Communist regime while at university.
[8] Ariola Lika fears Mafia forcible recruitment as a prostitute in Italy after a failed kidnapping attempt.
[9] Because of those fears, the applicants fled Albania in October 1998 and came to the United States to enable Mr. Morina to attend flight school in Florida which he did for two and one half months obtaining a pilot's license. They then came to Canada without seeking refugee status in the United States and without initially disclosing to Canadian immigration authorities they had sojourned there.
[10] The record establishes the applicants were badly let down by the legal advisor they had retained in Canada to handle the refugee claim and PDRCC application.
[11] He did not make any submissions to the PCDO advancing their PDRCC claim. More importantly, he failed to file with the PCDO new evidence confirmatory of Mr. Morina's fears. I am satisfied the lack of submissions to the PCDO and the failure to file additional evidence did not help the applicants' case.
[12] Counsel for the respondent opposes the stay application not on the grounds the applicants failed to show serious issue arising out of the former legal advisor's incompetence, but on the basis the new evidence which was negligently not filed did not objectively establish irreparable harm and objective risk of return.
[13] Two pieces of evidence were not filed with the PCDO: an affidavit from Romeo Zegali, dated August 14, 2000 an ex U.S. Embassy employee in Tirana, now landed in Canada and a newspaper article dated May 7, 2001 describing Mr. Morina's activities in resisting the former communist regime and he and his family being terrorized for it.
[14] Mr. Zegali confirms Mr. Morina was severely beaten and threatened with his life by the Mafia boss. He himself was threatened by the same thugs when they mistakenly took him for Mr. Morina when driving the same type and colour Embassy car. Mr. Zegali was given a message by the thugs. "Tell Artur Morina that we will find him even if he goes to the U.S., we have our people there".
[15] Mr. Zegali concluded his affidavit by deposing he next heard about Mr. Morina's family when a bomb exploded in their house.
[16] The newspaper article talks about the secret police persecuting him for his political activities and mentions the explosion of a grenade in Mr. Morina's home.
[17] On the totality of the evidence before me, the applicants have not established they will objectively face a risk for their lives if returned to Albania. They have not shown irreparable harm even after considering the evidence which was not filed with the PCDO. I have several reasons for coming to this conclusion.
[18] First, it defies common sense that the applicants would not seek asylum in the United States - the country for which Mr. Morina worked and this employment is, in part, the source of his problems. Moreover, if Mr. Morina had faced a Mafia threat related to the exercise of his duties involving embassy affairs, the matter would have been dealt with in Albania.
[19] Second, the Refugee Division found Mr. Markaj would no longer be interested in Mr. Morina for several reasons: no further encounters since early August to the time he fled in October 1998; Mr. Morina complied with Mr. Markaj's requests to leave the site; nobody else at the U.S. Embassy had any trouble over this land dispute.
[20] Mr. Zegali's affidavit does not overcome these findings. His affidavit does not give a date to the mistaken identity incident. The record also indicates the land dispute between the U.S. Embassy and Mr. Markaj made the headlines for several days in Tirana and Mr. Markaj had chosen to seek redress in the Courts.
[21] Third, Mr. Zegali's assertion of a bomb incident at Mr. Morina's house is hearsay and lacks details tying it to Mr. Markaj.
[22] Fourth, the newspaper article makes no reference to Mr. Morina's activities with the Royal Party and attributes the grenade explosion to the secret police and not Mr. Markaj as Mr. Zegali implies. Read as a whole it cannot be given much weight.
[23] Fifth, the applicants brought no evidence in this stay application in respect of Ariola Lika's fears which the Refugee Division found not to be credible.
[24] For all these reasons, this stay application will be dismissed.
"François Lemieux"
J.F.C.C.
Toronto, Ontario
February 5, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-237-02
STYLE OF CAUSE: ARTUR MORINA
ARIOLA LIKA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, FEBRUARY 4, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LEMIEUX J.
DATED: TUESDAY, FEBRUARY 5, 2002
APPEARANCES: Ms. Chantal Desloges
For the Applicants
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: Green & Spiegel
Barristers & Solicitors
121 King St. W.
Suite 2200
Toronto, Ontario
M5H 3T9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020205
Docket: IMM-237-02
Between:
ARTUR MORINA
ARIOLA LIKA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER