MC2-00423

RAD File No. / No de dossier de la SAR : MC2-00423 MC2-00424 / MC2-00425 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Date of decision April 7, 2022 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subject of the appeal Me Dan M. Bohbot Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (the male appellant), his wife, XXXX XXXX (the female appellant), and their minor daughter, XXXX XXXX, all citizens of Albania, are appealing the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claim. [2] In making its decision, the RAD considered the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. [3] The male appellant was appointed as the designated representative of the minor appellant. [4] For the reasons set out below, the appeal is dismissed. BACKGROUND [5] The appellants, citizens of Albania, had been living in Italy for several years, where they had a residence permit. [6] In his Basis of Claim Form (BOC Form), the male appellant alleges he is bisexual and that he had been surprised and filmed by a co-worker while having intimate relations with another colleague in XXXX 2018. He alleges that his brother, who was also living in Italy, confronted him on XXXX XXXX, 2018, and gave him the ultimatum to disappear, otherwise he would kill him. [7] The female appellant alleges that her family ordered her to divorce the male appellant by reason of his sexual orientation. [8] The appellants applied for and obtained tourism visas for Canada in XXXX 2018. In XXXX 2018, they left Italy for Canada, where they claimed refugee protection in April 2019. [9] Following a hearing on November 24, 2021, the RPD rejected the refugee protection claim on the grounds that the appellants are described in Article 1E of the Convention, in that, in Italy, by reason of their status, they have the rights and obligations similar to nationals of that country. [10] Before the RAD, the appellants allege that the RPD erred in its application of Article 1E of the Convention, for reasons that will be covered in the Analysis section. [11] For these reasons, the appellants are asking the RAD to set aside the RPD's determination and grant them refugee protection or, alternatively, to refer the matter to the RPD to be heard again. STANDARD OF REVIEW AND THE ROLE OF THE REFUGEE APPEAL DIVISION [12] The role of the RAD is to review RPD decisions by applying the correctness standard of review after carrying out its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellants. ANALYSIS Refugee Protection Division decision [13] The RPD conducted an analysis of exclusion clause 1E taking into account the criteria for doing so, as set out in paragraph 28 of Zeng (M.C.I. v. Zeng 2010 FCA 118) of the Federal Court of Appeal, which indicates: "Considering all relevant factors to the date of the hearing, does the claimant have status substantially similar to that of its nationals, in the third country? If the answer is 'yes', the claimant is excluded. If the answer is 'no', the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is 'no', the claimant is not excluded under Article 1E. If the answer is 'yes', the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant factors." [14] The RPD concluded that: A. The appellants had the status of permanent residents in Italy, giving them rights similar to those of citizens of that country. B. Although the documentary evidence indicates that a person loses their permanent resident status in Italy if they have been absent from the European Union for more than 12 months, and this was the case for the appellants on the date of the hearing before the RPD, the exclusion still applies to them as a result of the analysis of the factors set out in the case law, namely the reason for the loss of status, the possibility of return to Italy, the risk alleged in Albania, and Canada's international obligations, as well as any other relevant factors. C. The evidence does not establish for the appellants a well-founded fear of persecution or a likelihood that they would be subjected to a risk under section 97 of the Immigration and Refugee Protection Act (IRPA) in Italy, because they have not established that the Italian state would not be able to adequately protect them. D. The appellants, therefore, voluntarily allowed their permanent resident status in Italy to expire, without sufficient reasons. E. The Italian legislation provides a mechanism to regain permanent resident status, and the appellants have taken no steps in this regard. F. The evidence establishes that, in the event of a return to Albania, the male appellant would face a serious possibility of persecution by reason of his sexual orientation, but this does not apply to the female appellant and the minor appellant. G. Nothing in the evidence establishes that the application of exclusion clause 1E, in the appellants' case, would be contrary to Canada's international obligations. Alleged errors before the Refugee Appeal Division [15] The appellants first allege in their memorandum that the RPD's analysis about their fear of persecution in Italy is erroneous. [16] I agree with the RPD's conclusion in this respect, namely that the appellants have not established that the Italian state protection would not be adequate for them. [17] The male appellant alleges that he fears his brother in Italy, who threatened him because of his bisexuality. The male appellant did not file a complaint with the authorities following these threats. [18] At paragraph 63 of their memorandum, the appellants allege: [translation] "It is difficult to imagine XXXX contacting the police to complain about threats made by his own brother." I do not agree with that argument. I am of the opinion that the male appellant could indeed have sought protection from the Italian authorities, regardless of whether the threats came from his brother or not, instead of going to Canada, as he testified he preferred to do. [19] At paragraphs 19 to 28 of its reasons, the RPD proceeded with an analysis of the documentary evidence relating to Italy and concluded that it is a democratic state in which the police forces provide quality services and are able to provide protection to its citizens and the people present in the country. [20] The appellants are not contesting these specific conclusions, and I do not see how the RPD could have erred on this matter. [21] The appellants also allege, at paragraph 66 of their memorandum: [translation] "It is clear that, as a member of the LGBTQ community, there is a risk of persecution for XXXX in Italy." Once again, I do not agree with this statement. [22] First, the male appellant never invoked this fear of persecution by society in general in his BOC Form. He instead alleges a fear of his brother. Then, although the documentary evidence may report verbal and physical violence against members of this community in Italy, they are isolated incidents, as can also happen in a country like Canada. I am of the opinion that the evidence does not establish a serious possibility that the male appellant would be persecuted on this ground, especially since he has never been openly a member of the LGBTQ community. [23] The appellants then submitted that the RPD's analysis erred regarding the loss of their status in Italy and that its analysis of state protection, determining that their loss of status is "voluntary," is not relevant. [24] Once again, I do not agree with this statement. [25] The question of loss of status in Italy, be it voluntary or involuntary, is indeed one of the criteria to be analyzed under Zeng, mentioned above, as the RPD found that the permanent resident status had expired on the date of the hearing. In this case, it was quite relevant and correct to determine that the appellants did not have a well-founded fear of persecution in Italy because state protection is adequate there, and consequently, coming to Canada and letting their legal status in Italy expire amounts to a voluntary loss of this status. I can only come to that conclusion. [26] Regarding the possibility of returning to Italy, the appellants submit in their memorandum: [translation] "It is not possible to expect XXXX to return to Italy on the grounds of work or family...." [27] Once again, the possibility of returning to Italy was one of the criteria to be assessed, as the RPD noted that legal status had expired on the date of the hearing. In this case, the documentary evidence establishes that the appellants could apply for an Italian visa to return there and even re-establish permanent resident status. [28] The appellants have taken no steps in this regard, but it is clear that this possibility exists and that, consequently, there is reason to conclude that there is an opportunity for the appellants to return to the country referred to in exclusion clause 1E, in this case, Italy. [29] Finally, the appellants submit that the RPD erred in its analysis of the female appellant's fear of persecution in Albania. They allege that the female appellant would be at risk at the hands of her cousins, whom her father had allegedly asked to put pressure on her after discovering the male appellant's bisexuality. [30] The RPD found that the evidence did not demonstrate that the female appellant had a well-founded fear of persecution in Albania, because she was never threatened by her cousins, her father died in 2020 and she failed to state in her BOC Form that the persecution was allegedly to re-establish family honour pursuant to the law of Kanun, as she testified during the hearing. [31] I am of the opinion that, regardless of whether the RPD's conclusion is erroneous or not, it does not vitiate its general conclusion that the appellants are referred to in exclusion clause 1E. [32] Both the RPD's and the RAD's analysis of the criteria to be assessed, according to Zeng, suggest that the appellants voluntarily let their permanent resident status in Italy expire, that it is possible for them to return there and that it would not violate Canada's international obligations. [33] I am of the opinion that the conclusions regarding these three criteria are sufficient to conclude that the appellants are described in the exclusion clause, even if it was established that they would have a well-founded fear of persecution in Albania. [34] I would like to add this in relation to the fifth criterion mentioned in Zeng, namely that of "all the other relevant factors." In this case, it appears relevant to take into account the fact that the appellants have lived for many years in Italy, since about 1998 for the male appellant and since 2007 for the female appellant. The minor appellant was born there. The appellants therefore established themselves in Italy, where they worked and, in the case of the minor appellant, studied. The appellants speak Italian and there is every reason to believe that they integrated into Italian society during these years. [35] In my opinion, these are relevant facts that support applying exclusion clause 1E in the appellants case. [36] Therefore, considering all of the above, I conclude that the appellants have failed to demonstrate that the RPD made errors warranting the RAD's intervention. REMEDY [37] For these reasons, I confirm the RPD's determination that XXXX XXXX, XXXX XXXXandXXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" under section 97 of the IRPA. [38] The appeal is dismissed. (signed) Normand Leduc Normand Leduc April 7, 2022 Date IRB translation Original language: French RAD File No. / No de dossier de la SAR : MC2-00423 MC2-00424 / MC2-00425 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français