Toronto, Ontario, May 26, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application concerns a citizen of Albania who claims refugee protection on the basis of his sexual orientation as a homosexual.
[2] The following excerpts from the Refugee Protection Division’s [RPD] decision expose two fundamental errors:
The onus is on the claimant to satisfy the panel that he has and was following his desires in that type of lifestyle [i.e. as a homosexual].
[…]
The panel finds that the claim is not based on sexual orientation and in this case, the integral issue is whether the claimant has met his onus in establishing his identity and persecution suffered due to that in his country and has acted accordingly to fulfill those desires in an open society in Canada.
[Decision, p.2]
[3] It appears from the words written that the RPD member believes that, in order for a person to prove his or her homosexuality as the basis for a claim of protection, it is necessary for that person to have engaged in homosexual conduct. It also appears from the words written that the RPD member believes that, for a person to be successful in a claim for protection, it is necessary for that person to have suffered persecution in the country from which they have taken flight. I find that both beliefs are erroneous.
[4] As a result, I find that the decision under review, which is based on the erroneous beliefs identified, is made in reviewable error.
ORDER
ACCORDINGLY, I set aside the RPD’s decision and refer the matter back for redetermination by a differently constituted panel.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5156-07
STYLE OF CAUSE: ROBERT SHAMETI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
David Yerzy
|
|
David Joseph
|
SOLICITORS OF RECORD:
David Yerzy Barrister & Solicitor Toronto, Ontario
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario |