2024 RLLR 11
Citation: 2024 RLLR 11
Tribunal: Refugee Protection Division
Date of Decision: August 3, 2024
Panel: Tyler Nicholson
Counsel for the Claimant(s): Gjergji Hasa
Country: Albania
RPD Number: TC2-24398
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A
DECISION
[1] The claimant XXXX XXXX purports to be a citizen of Albania. He is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
GUIDELINES/PROCEDURAL MATTERS
[2] In considering this claim, the panel has taken into consideration Chairperson’s Guideline 9 – Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression , and Sex Characteristics (SOGIESC).
[3] In doing so, all relevant factors, such as the social and cultural context within this claim, have been considered along with the Guidelines.
ALLEGATIONS
[4] The claimant’s allegations are set out in his Basis of Claim (BOC) form and two subsequent amendments.[2] The claimant testified to fearing persecution in Albania due to his membership in a particular social group, namely due to his SOGIESC as a gay man.
[5] The claimant testified to discovering he was attracted to men in his early teens. He testified that his discovery of gay pornography at a local internet café led to negative attention in his neighbourhood, prompting his uncle to recommend he come to Canada to avoid attention. He was denied permission to travel.
[6] The claimant testified that a subsequent attempt for him to kiss a friend was rejected, prompting more anger in the neighbourhood. He fled to Germany and applied for asylum on unrelated grounds with his cousin. He was rejected and deported to Albania.
[7] When in Albania, in February 2022 he met a German man and began a relationship with him. He was discovered kissing the man in a car. His family was informed, and threatened his life. He moved to a seaside town and went to police, but they threatened him as well.
[8] The claimant arrived at XXXX XXXX XXXX XXXX XXXX XXXX in Toronto in XXXX of 2022 and applied for protection on arrival.
DETERMINATION
[9] The panel finds that claimant is a Convention refugee.
ANALYSIS
Identity
[10] The panel was provided with true copies of the claimant’s Albanian passport.[3]
[11] The panel finds that the claimant has established his identity and status as a citizen of Albania on a balance of probabilities.
CREDIBILITY
[12] While aware of its obligation to presume a claimant is credible unless given reason to believe otherwise, as well as the various provisions of the Guidelines describing the issues that claimants face in describing their differing SOGIESC and obtaining documents from their home countries, the panel had concerns regarding the claimant’s credibility that were not adequately explained.
[13] The claimant provided a psychological report.[4] The panel notes that the report was detailed, personalized, and well written, and considered it with weight as evidence.
Discovery
[14] The claimant testified that he was discovered making out in a car with Andreas by his uncle.
[15] It was put to the claimant that his original BOC had indicated that “[…]I was caught by my neighbours in March 2022 making out with my ex-boyfriend in his car. After this event, my family found out that I was continuing on the same ‘dirty’ path, and extended family members, friends, and neighbours found it that I was gay.[5]” His subsequent amendment had indicated it was his uncle who discovered them.[6]
[16] The panel asked why this element of his testimony had changed. The claimant did not provide a clear response.
[17] The panel finds it unlikely that the claimant would refer to his discoverers as a vague plural description, but later change his testimony to that of being an uncle if this were the case.
[18] The panel rejects the claimant’s explanation for the discrepancy with his original BOC and draws a negative inference with regard to his credibility.
Other Issues
[19] While the claimant was clear on many details, the remainder of the evidence before the panel had apparent deficiencies and contradictions.
[20] There was no attempt to obtain documentary evidence from Germany to corroborate the claimant’s testimony, which, contrary to counsel’s submissions, was not the responsibility of the Minister. The fact that the claimant would sign a form for the Minister to possibly obtain information regarding exclusion, indicating a lack of fear in doing so, but not going to any effort to acquire documents from a European Union country to corroborate his claim, in fact, raises a lot more questions than answers.
[21] The only evidence of any sort of activity that would establish the claimant’s SOGIESC in Canada, where the claimant has been resident for more than two years, was a $XXXX donation to the XXXX. The claimant advised he was laying low to establish himself.
[22] There was no evidence before the panel of any communications with XXXX, despite the claimant testifying to frequent social media conversations and the communications taking place in 2022. Given its knowledge of how these apps operate, the panel did not find a lost phone to be an adequate explanation.
[23] The panel was to believe that the claimant’s sister, who invited him to Canada, did not appear as a witness so that her husband would not be aware of the claimant’s sexuality, which the claimant stated was now a notorious fact in the rest of his family given its public discovery and the threats against him.
[24] The panel was also to believe that the claimant’s uncle, who wanted him to come to Canada with explicit knowledge of his sexuality, would not assist the panel in helping the claimant obtain refugee protection due to homophobic attitudes.
[25] The panel found that the lack of evidence provided and the vague testimony of the claimant detracted from his credibility.
Summary
[26] However, considering the Guidelines that explicitly bind the panel, the panel finds that one contradiction in an original BOC that was corrected and the other apparent issues described above are not sufficient to rebut the presumption of credibility with regard to the claimant, and the panel takes the claimant at his word with regard to his explanations for the above apparent contradictions.
[27] The claimant’s testimony was clear, he was in good spirits and answered questions happily, and, aside from what was noted above, in line with his BOC, the claimant testified to never having feelings or attraction to women and to being gay.
[28] The panel finds that the claimant has established that the events he described in Albania occurred on a balance of probabilities, that he is a gay man, and that his family is pursuing him to exact harm on him.
Objective Basis
[29] Despite legal reforms that attempt to legislation to European Union standards,[7] societal pressures against those of a different SOGIESC continue to be a part of society,[8] with some sources describing it as “pervasive and dominant.[9]”
[30] Other sources confirm that LGBT persons are still subject to discrimination and harassment,[10] with Freedom House stating that despite recent legislative victories, and anti-LGBT bias still exists in society.[11] LGBT persons are not able to have their partnerships recognized in any form and face a society that hate speech and discriminatory language are a constant problem.[12]
[31] While this case does not involve a blood feud, Albania also has a culture of family violence with those of different SOGIESC, which was seen during the COVID pandemic where LGBT persons had to move home.[13]
[32] The claimant has established that he would face a serious possibility of discrimination amounting to persecution if he were to return to Albania. The panel finds that the claimant has established an objective basis on a balance of probabilities.
State Protection
[33] Given the claimant’s described issues in obtaining assistance from police, as well as corroborating objective evidence that police forces in Albania are not trusted by those of different SOGIESC due to complainants being outed and informed to family members,[14] the panel finds that the claimant has established that adequate state protection would not exist for him in Albania.
Internal Flight Alternative
[34] Given the size of Albania, the possible availability of tracing,[15] given that conditions are considered the same for LGBT persons throughout the country, and considering that the claimant was resident in the most liberal part of the country and faced issues,[16] the panel finds that the claimant would likely face persecution throughout the country, and finds there is no internal flight alternative.
CONCLUSION
[35] The panel finds that the claimant has established that he faces a serious possibility of persecution in Albania due to his membership in a particular social group.
[36] The panel accepts the claim.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
[2] Exhibit 2, 5, and 9
[3] Exhibit 1.
[4] Exhibit 9, pages 26-45
[5] Exhibit 2, box 2(a)
[6] Exhibit 9, page 9
[7] Exhibit 3, 6.5 at 3.1, 3.2, 3.3, 4.1, 4.2, 4.3
[8] Exhibit 3, 6.5 at 5.1
[9] Exhibit 3, 6.5 at 5.2.6
[10] Exhibit 3, 2.3 at page 2
[11] Exhibit 3, 2.6
[12] Exhibit 3, 2.1 at pages 29-38
[13] Exhibit 6.5, 5.2.17-19
[14] Exhibit 3, 2.1, page 29.
[15] Exhibit 3, 6.5, 2.6.4
[16] Exhibit 3, 6.5 at 2.6