Shameti v. Canada (Citizenship and Immigration), 2008 FC 665

Date: 20080526

Docket: IMM-5156-07

Citation: 2008 FC 665

Toronto, Ontario, May 26, 2008

PRESENT:     The Honourable Mr. Justice Campbell

BETWEEN:

ROBERT SHAMETI

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.

“Douglas R. Campbell”

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

DATE OF HEARING:                      May 26, 2008

REASONS FOR ORDER

AND ORDER:                                   Campbell J.

DATED:                                             May 26, 2008

APPEARANCES:

SOLICITORS OF RECORD: