Citation: 2019 RLLR 125
Tribunal: Refugee Protection Division
Date of Decision: June 25, 2019
Panel: E. Joanne Sajtos
Counsel for the Claimant(s): Jeffrey L. Goldman
Country: Albania
RPD Number: TB8-06714
ATIP Number: A-2021-00256
ATIP Pages: 000045-000053
REASONS FOR DECISION
[1] These are the reasons for the decision in the claim of [XXX] who claims to be a citizen of Albania, and who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1
ALLEGATIONS
[2] The claimant’s allegations are set out in his Basis of Claim Form.2
[3] In summary, the claimant claims that he is a homosexual. His father relocated from Albania to Greece when the claimant was young, and as a result, the claimant was raised by his uncle, [XXX]. The claimant engaged in his first same-sex relationship in 2009. In January 2018, the claimant was in a bar. When he went to the washroom, the bartender, who knew the claimant, picked up the claimant’s phone and saw messages that he had exchanged with his same-sex partner. He was confronted with the messages and told to leave the bar without being given his phone back.
[4] In February 2018, the claimant’s uncle confronted him about his sexuality, but the claimant denied that he was a homosexual. He was told that if the rumours were true, his uncle would kill him. The claimant, who worked in construction with his uncle, learned that the construction jobs where he had worked were being cancelled based on his homosexuality.
[5] The claimant travelled through Greece en route to Canada, to live with his cousin, who is also a member of the lesbian, gay, bi-sexual, transgender, queer (LGBTQ) community. Since coming to Canada, the claimant has learned that his uncle, [XXX], has relocated to Greece because of the shame he faced in Albania, given that he has relatives who are homosexual.
DETERMINATION
[6] The panel finds that the claimant is a Convention refugee because he has established a serious possibility of persecution on account of his membership in a particular social group, namely, homosexuals.
ANALYSIS
[7] The determinative issues in this case are credibility, state protection, and internal flight alternative.
Identity
[8] The claimant established his personal identity and Albanian nationality based on a certified true copy of his passport3 and his national identity card.4
Credibility
[9] Credibility is an issue to be considered in all claims before the Refugee Protection Division. To determine whether a claim is well-founded, the panel must find, on a balance of probabilities, that the evidence is credible and trustworthy. A claimant’s testimony is presumed to be true, unless there are valid reasons to doubt its truthfulness.5 The existence of contradictions, discrepancies, and implausibility in the evidence of a claimant is a well-accepted basis for finding a lack of credibility. The panel can also use common sense when assessing credibility.6
[10] In determining this claim, the panel has been guided by Guideline 9.7 The purpose of Guideline 98 is to promote greater understanding in cases that involve sexual orientation and gender identity and expression (SOGIE) and of the harm that individuals may face because of their non-conformity with socially-accepted SOGIE norms. This Guideline addresses the particular challenges that individuals with diverse SOGIE may face when presenting their cases before the Refugee Protection Division and it establishes guiding principles for decision-makers who adjudicate cases involving SOGIE.
[11] The claimant and his witness testified in a straightforward manner, and there were no relevant inconsistencies in their testimony or contradictions between their oral testimony and the written evidence, which were not satisfactorily explained.
[12] According to the claimant, he was able to successfully hide his homosexuality until January 2018 when a bartender in his community discovered messages on his phone that referred to a same-sex relationship in which he was engaged. The bartender told other members of the community, and the claimant was confronted by his uncle, who was also his employer. A threat to his life was made and the claimant, who recognized that his life was in danger, immediately left his home and stayed in a hotel for two days before travelling to Greece en route to Canada. He was also threatened by his father, who has a history of being violent towards his family members. A witness, who is the claimant’s current partner, testified to knowing about some of the hardships that the claimant endured with his family and his fear for his safety in Albania. The panel is satisfied that the claimant received death threats from his family members, including messages posted on his Facebook page after he had arrived in Canada, which resulted in him fearing for his safety.
[13] The claimant is no longer in communication with his immediate family members with the exception of one of his brothers, who remains in Albania. His other family members refuse to speak to him because of his sexuality. According to his brother, his uncle, [XXX], left Albania because of the shame he feels given that he has homosexual relatives. The claimant, however, continues to fear that his uncle may return to Albania, and he feels that his uncle’s anger will have been further fueled by his shame and “honour”. When questioned as to why he did not report his uncle to the police, the claimant testified that he has a friend who is a police officer. The officer told the claimant that the police would probably assault a member of the LGBTQ community as opposed to protecting him. The evidence was that members of the LGBTQ community are perceived in Albania as being sick, or that they should be killed because of the way that they affect other people. Given the claimant’s quick exit from Albania following the threat he received from his uncle, and the fact that he left all of his possessions behind with the exception of a few clothes, the panel is satisfied that his actions were those of someone who is fearful for his safety.
[14] By way of affirmation of the claimant’s homosexual status, he testified to participating in the Toronto LGBTQ community. He presented receipts9 from bars that he attends in the “gay village.” The claimant’s current same-sex partner testified to the claimant’s personal likes and habits, which were entirely consistent with the claimant’s testimony. In addition, correspondence provided from the 519 Community Centre,10 indicates that the claimant had participated in two programs there, one of which is a support group for LGBTQ refugee claimants. Based on the combination of the written and the oral evidence, the panel is satisfied that the claimant is a homosexual and that he is an active participant in the LGBTQ community in Toronto.
[15] Based on the totality of the evidence, the claimant has established that he has a well founded fear of persecution should he return to Albania, based on his sexuality.
State protection
[16] With respect to state protection, the panel must consider whether there is adequate state protection in Albania, whether the claimant took all reasonable steps to avail himself of that protection, and whether there is clear and convincing evidence of the state’s inability to offer adequate state protection.
[17] States are presumed to be capable of protecting their citizens, except in situations where a state is in complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking the ineffective protection of a state, merely to demonstrate that ineffectiveness.11
[18] A guarantee of protection for all citizens at all times is not to be expected. Nor is perfect protection. Where a state is in effective control of its territory, has military, police, and civil authorities in place, and it makes serious efforts to protect its citizens, the mere fact that it is not always successful will not justify a claim that the state is not providing protection.12 To require full effectiveness of foreign police and judicial systems would be to insist on a standard for other states which we, in Canada, are not always able to achieve ourselves.13 Further, it is not enough for there to be an existing relevant legislative or procedural framework for protection if the police or other authorities are not able or willing to effectively implement those protective provisions.14
[19] The United States Department of State report for Albania, which is dated March 13, 2019,15 indicates that Albania is a parliamentary democracy. In June 2017, the country held parliamentary elections that the Organization for Security and Cooperation in Europe (OSCE) reported respected fundamental freedoms but were marred by allegations of vote buying and pressure on voters.16 Human rights issues included pervasive corruption in all branches of government.
[20] The report further notes that although Albanian law prohibits discrimination based on sexual orientation, enforcement of the law was weak. Despite sexual orientation and gender identity being protected by hate-crime law, public officials sometimes made homophobic statements.17 Social and traditional media have criticized a recent anti-bullying campaign and accused the LGBTI community of attempting to influence young people inappropriately.18 In 2017, police requested that a transgender woman withdraw her complaint of having suffered physical violence.19 Two weeks later, she was attacked by the same perpetrator and sent to the hospital.20 As of August 2017, the Commission for Protection against Discrimination (CPD) received two complaints alleging discrimination based on sexual orientation. The CPD ruled against the complainants in both cases.21
[21] In a report entitled Being LGBTI in Eastern Europe: Albania Country Report, which is dated November 28, 2017,22 it was noted that Albania has adopted a National Action Plan 2016- 2020 for protecting and advancing LGBTI rights. During the course of his testimony, the claimant stated that because Albania wants to join the European Union, it has attempted to create an appearance of LGBTQ rights that is not based on the reality of the conditions faced by LGBTQ people in Albania. His testimony was corroborated by the authors of the above referenced report, who note that:
… These achievements in policy and legislation have led to a contradictory situation combining an outward appearance of legal protection and higher visibility of LGBTI people with hostility and discrimination still prevalent within key institutions…..23
Although the institutional environment is changing in positive ways, the effects of legal and policy improvements are not yet visible, because they are not being applied in practice. The lack of enactment of legal and institutional measures shows that the government has endorsed its responsibility to protect the rights of LGBTI people more to satisfy the demands of the international community – and in order to meet the requirements for EU membership in particular- rather than as a civil duty towards LGBTI citizens.24
[22] The report states that rigid gender stereotypes and cultural expectations mean that men and women are expected to conform to rather inflexible concepts of masculinity and femininity in their behaviour and appearance in Albania. To deviate from these binary gender stereotypes is considered by some to be morally wrong. As a patriarchal society, there are high levels of social disapproval for any form of sexuality that falls outside heterosexual norms. Surveys have found that Albanians hold very negative perceptions of LGBTI people.25 A community may be unaware of a difficult family situation that involves LGBTI people. Parents of LGBTI people tend to keep their children’s sexuality secret to avoid “losing their honour”, and they often force their children to suppress their LGBTI identity. Sometimes families break off relations with the LGBTI person, or they force them to move away from home. Physical violence is considered to be an effective form of discipline and it is pervasive.26 In Albania, the perception that LGBTI people are sick and in need of a medical cure for their sexuality is very widespread among both the general public and health professionals.27 Due to the widespread prejudice and homophobia, most LGBTI people live in secrecy.28
[23] The panel notes that the claimant’s testimony as to the lack of availability of state protection and the conditions in Albania is entirely consistent with the country condition documentation.
[24] In view of the above analysis, the panel finds that the claimant has provided clear and convincing evidence that, on a balance of probabilities, state protection is inadequate. Thus, he has rebutted the presumption of state protection.
Internal flight alternative
[25] The panel has considered whether a viable internal flight alternative exists for the claimant. Based on the totality of the evidence, the panel finds that there is a serious possibility of persecution throughout Albania. As noted in Being LGBTI in Eastern Europe: Albania Country Report:29
Deep-rooted prejudices among the majority of the population and a lack of awareness on the part of state officials impede the effective application of legislation and prevent its further improvement. They continue to experience a lack of support and violence from their families, neighbourhoods, political and religious leaders, law enforcement officials, employers, and health and education service providers.30
Thus, the panel is satisfied that the claimant would suffer a well-founded fear of persecution in all parts of Albania.
CONCLUSION
[26] Based on the totality of the evidence, the panel concludes that the claimant is a Convention refugee in accordance with section 96 of the Immigration and Refugee Protection Act.31 Therefore, the claim for refugee protection is allowed.
(signed) E. Joanne Sajtos
June 25, 2019
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form.
3 Exhibit 1, Package of information from the referring CBSA/CIC.
4 Ibid.
5 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
6 Shahamati, Hasan v. M.E.I. (F.C.A. # A-388-92), Pratte, Hugessen,McDonald, March 24, 1994.
7 Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
8 Ibid.
9 Exhibit 8, Claimant’s personal documents, at pp. 12-18.
10 Ibid., at pp. 1-2.
11 Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) I, 20 Imm. L.R. (2d) 85.
12 Villafranca: M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Marceau, Hugessen, Decary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at para 7.
13 Samuel, Julia Vanessa v. M.C.I. (F.C., no. IMM-5175-07), Lagacé, June 18, 2008, 2008 FC 762, at para 13.
14 Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999, at para 15.
15 Exhibit 3, National Documentation Package (NDP) for Albania (March 29, 2019), item 2.1.
16 Ibid., item 2.1, at Executive Summary.
17 Ibid., item 2.1, at s. 6.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
22 Ibid., item 6.5.
23 Ibid., item 6.5, at Key Findings.
24 Ibid., item 6.5, at s. 5.1.
25 Ibid., item 6.5, at s. 4.1.
26 Ibid.
27 Ibid.
28 Ibid., item 6.5, at s. 4.5.
29 Ibid., item 6.5.
30 Ibid., item 6.5, at s. 5.1.
31 Immigration and Refugee Protection Act, supra, footnote 1, s. 96.