TC0-07746

RAD File / Dossier de la SAR : TC0-07746 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 15, 2021 Date de la décision Panel Caitlin Maxwell Tribunal Counsel for the person who is the subject of the appeal Jeffrey L. Goldman Barrister & Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for granting the appeal of XXXX XXXX ("the Appellant"). I am substituting a decision that the Appellant is a Convention refugee. [2] The Appellant is a citizen of Albania and of Roman Catholic faith. He claims a fear of persecution because of his relationship with a Muslim woman, whose family is alleged to have ties to local criminal gangs and politicians. The Refugee Protection Division ("RPD") determined the Appellant was not credible, and, in the alternative, that he had access to state protection. The Minister of Immigration, Refugees, and Citizenship intervened before the RPD on the issue of credibility; he has not intervened on appeal. Before the Refugee Appeal Division ("RAD"), the Appellant argues that the panel made unfounded credibility findings, was overly microscopic in its analysis, applied an improper standard of proof, ignored evidence, failed to provide notice of issues, and failed to provide adequate reasons. SCOPE OF THE APPEAL [3] Generally, I must review a decision of the RPD on a standard of correctness.1 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing the credibility of oral testimony, which may attract deference in particular cases.2 In this case, however, the RPD had no advantage. I have therefore considered whether its decision was correct. [4] The Appellant has submitted additional evidence in the form of an updated declaration from his neighbour, addressing previous issues with translation, as well as recent RPD and RAD decisions on Albania. It is not necessary for me to consider this evidence as I find the record before me sufficient to grant the appeal. ANALYSIS [5] The determinative issues on appeal are the credibility of the Appellant's allegations, as well as a lack of state protection and internal flight alternative ("IFA") in Albania. For the following reasons, I find the RPD erred in determining the Appellant had not credibly established his allegations and in finding state protection was operationally adequate. RPD erred in its credibility assessment [6] The panel found that the Appellant was not credible, in large part because he failed to disclose an unsuccessful attempt to enter the United Kingdom in 2013 via Germany. It agreed with the Minister's submission that this undermined the Appellant's credibility and suggested he was willfully trying to construct an "unsophisticated" profile. While I agree with the panel that the Appellant should have disclosed this travel, I accept counsel's submission that it was not particularly relevant to the claim, the events of which occurred in 2017 and 2018. Apart from this issue, the panel dismissed the Appellant's evidence which served to corroborate his relationship as well as the threats and violence he had experienced, ultimately concluding that he had fabricated the profile of his partner's family to bolster his claim, which seriously undermined his credibility. [7] With respect, the Appellant provided several declarations which spoke to the profile of his partner's family, as discussed below. He also provided a news article connecting the family to organized crime.3 I fail to see how this evidence could result in a conclusion that he had fabricated the family's profile. The panel did not point to any inconsistencies or omissions in the Appellant's evidence, apart from failing to disclose the prior travel. In my independent assessment, the Appellant provided sufficient credible evidence to establish his allegations. [8] The Appellant submitted a sworn declaration, accompanied by government-issued photo ID, from a close friend of his partner.4 She attested to the relationship and to the threats and violence the Appellant had suffered. She also confirmed that her friend's family was wealthy and dangerous, with ties to government and police. The panel dismissed this letter because the Appellant did not call the author as a witness; however, I find it is credible as a sworn document and that it serves to corroborate the relationship.5 [9] The Appellant also provided a declaration from his neighbour, who witnessed his beating in XXXX 2018.6 While I agree that there were certain translation issues, I find the panel erred in determining it was "inarticulate." I find the neighbour's evidence of the attack itself to be direct and also credible, as it is provided by way of a sworn declaration accompanied by photo ID. The neighbour also indicates that the partner's family is well known in XXXX, economically powerful, and connected to both the ruling party and the "underworld," which provides corroboration of local beliefs about this family. [10] The Appellant also provided hospital reports confirming his treatment following attacks in XXXX and XXXX 2018.7 While the panel gave the reports little weight as they did not confirm who attacked him, I find they provide further corroboration of the Appellant's allegations of being attacked and moving to a new hospital after the second attack because of his fear his partner's family would find him.8 [11] Additionally, the Appellant provided a declaration from a church official, who confirmed the Appellant had sought assistance following the attack in XXXX 2018, at which time he had advised the Appellant to stay away from his partner, because he knew her family to be dangerous;9 declarations from a relative and family friend with whom he hid in XXXX and XXXX, respectively, following the XXXX 2018 attack, confirming the Appellant's stay, and, in the case of the relative, that they had asked the Appellant to leave because they were worried about facing repercussions from the partner's family, whom they believed were dangerous;10 a declaration from a women's organization, which states it was consulted by the partner's friend, who sought help for her after her family refused to allow her to leave the home and had threatened and attacked the Appellant;11 and confirmation of the Appellant's employment at the clothing store where he indicated he first met his partner.12 Together, I find this additional evidence further corroborates the Appellant's account. [12] On a balance of probabilities, I accept that the Appellant was in a relationship with a Muslim woman whose family disapproved of him, and that he faced physical violence and threats as a result. I also accept that the partner's family was known locally to have criminal and political connections. I find that the Appellant faces a serious possibility of persecution, based in part on his religion, which is a protected ground under the Convention. RPD erred in its state protection analysis [13] I also find the RPD erred in its state protection analysis. While the panel acknowledged corruption was an ongoing problem in Albania, as well as the fact that the police reportedly told the Appellant he "got what he deserved" after the attack in XXXX 2018, it ultimately concluded the Appellant had failed to rebut the presumption of state protection and that he should have approached complaint bodies, such as the Service for Internal Affairs and Complaints ("SIAC"). [14] However, the jurisprudence is clear that protection need not be sought if it is not likely to be forthcoming.13 While I agree with the panel that Albania has made progress in recent years on corruption, I find the balance of the documentary evidence continues to indicate that these efforts have not yet translated into adequate on-the-ground protection, and that those with connections have been able to use their influence to avoid punishment. I also agree with the Appellant that the panel erred in relying on the existence of complaint mechanisms to establish the existence of state protection.14 [15] According to the US Department of State, "Police did not always enforce the law equitably. Personal associations, political or criminal connections, poor infrastructure, lack of equipment, or inadequate supervision often influenced law enforcement."15 The Department further notes that "[w]hile the government had mechanisms to investigate and punish abuse and corruption, police corruption remained a problem."16 According to the head of the European Assistance Mission to the Albanian Justice System, "the whole judicial system in Albania is corrupt...the fact that you know somebody or you pay is understood as something normal. Lawyers give money to judges, judges demand money, and even prosecutors take money."17 The head of the Mission noted that while the government appears to have taken positive steps toward eliminating corruption, these efforts "are just a façade."18 [16] In light of the above, I find the Appellant has rebutted the presumption of state protection with clear and convincing evidence.19 No viable IFA [17] The panel proposed Tirana as an IFA at the hearing. When asked why the agents of persecution remain interested in him, given he is no longer seeing or communicating with his partner, the Appellant responded that previously, he and his partner continued to see one another despite the family's threats and that the family continues to believe his intention is to maintain the relationship.20 In her declaration, the friend of the Appellant's partner indicates that the partner's family continues to look for the Appellant, because they believe their daughter remains interested in him.21 [18] The Appellant testified that people from XXXX lived in the same area in XXXX, and that his relocation would attract inquiries from others into where he was from and why he was relocating, even if he were to move to a different area.22 According to research by the Swiss Refugee Council, kinship ties remain strong throughout Albania, making it difficult to relocate. This includes the practice of residing in the same area as others from your hometown when you relocate to another city and inquiring into one's home and family ties upon relocation to a new area.23 This means the Appellant's relocation would attract the attention of others, and lead to inquiries within others' networks, potentially exposing his location. The state police themselves have confirmed that although they have tried to comply with European privacy standards, given the small size of Albania, they cannot prevent people from being traced.24 [19] Furthermore, the security of the mandatory civil registration system remains in question. According to the state police, there have been cases where police officers used their access to the civil registry database for "illicit purposes."25 While the police maintain that these instances are rare and prosecuted,26 they nevertheless expose the vulnerability of the mandatory civil registration system to abuse, particularly in a country with well-documented police corruption.27 [20] Considering the above, I find, on a balance of probabilities, that the agents of persecution have both the motivation and the means to locate the Appellant throughout Albania. I therefore find that the test for IFA fails on the first prong and that internal relocation is not available in this case.28 CONCLUSION [21] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "Caitlin Maxwell" Caitlin Maxwell April 15, 2021 Date 1 Canada (Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93, at para. 103. 2 Ibid., at para. 70. 3 Exhibit RPD-1, RPD Record, Exhibit 6,XXXX XXXX, "The gang that is terrorizing XXXX," XXXX XXXX 2018, pp. 116-120. 4 Exhibit RPD-1, RPD Record, Exhibit 7, Declaration of XXXX XXXX, pp. 139-142. 5 Shahaj v Canada (Minister of Citizenship and Immigration), 2005 FC 1044, at para. 9. 6 Exhibit RPD-1, RPD Record, Exhibit 7, Declaration of XXXX XXXX, pp. 113-115. 7 Exhibit RPD-1, RPD Record, Exhibit 8, XXXX 2018 hospital report, pp. 148-149; Exhibit 7, XXXX 2018 hospital reports, pp. 131-134. 8 Bagri v Canada (Minister of Citizenship and Immigration), [1999] FCJ No. 784, at para. 11. 9 Exhibit RPD-1, RPD Record, Exhibit 6, Declaration of XXXX XXXX XXXX, pp. 111-112. 10 Exhibit RPD-1, RPD Record, Exhibit 7, Declaration of XXXX XXXX, pp. 135-138; Declaration of XXXX XXXX, pp. 143-144. 11 Exhibit RPD-1, RPD Record, Exhibit 9, Declaration of XXXX XXXX, XXXX of XXXX XXXX XXXX XXXX, pp. 153-154. 12 Exhibit RPD-1, RPD Record, Exhibit 9, Employment letter, pp. 155-156. 13 Canada (Attorney General) v Ward, [1993] 2 SCR 689. 14 Katinszki v Canada (Minister of Citizenship and Immigration), 2012 FC 1326, at paras. 14-18; see also, Balogh v Canada (Citizenship and Immigration), 2015 FC 76 at para. 30. 15 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Albania (30 September 2019), Item 2.1, US Department of State, Country Reports on Human Rights Practices for 2018: Albania, 13 March 2019, at pp. 5-6. 16 Ibid., at p. 5. 17 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Albania (30 September 2019), Item 1.7, European Asylum Support Office, EASO Country of Origin Information Report, "Albania: Country Focus," November 2016, at p. 25. 18 Ibid. 19 Ward, supra. 20 Audio recording of RPD hearing, 00:38:32 - 00:40:23. 21 Exhibit RPD-1, RPD Record, Exhibit 7, Declaration of XXXX XXXX, pp. 139-142. 22 Audio recording of RPD hearing, 1:29:01, 1:29:52 - 1:30:17, 1:30:57 - 1:33:40. 23 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Albania (30 September 2019), Item 7.8, Swiss Refugee Council, "?Albanie: vendetta - Renseignement de l'analyse-pays de l'OSAR," 13 July 2016, at p. 9. 24 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Albania (30 September 2019), Item 5.13, UK Home Office, Country Policy and Information Note. Albania: Women fearing domestic abuse (Version 3.0), December 2018, pp. 48-49, s. 8.7.6. 25 Ibid., p. 48, s. 8.7.3. 26 Ibid., s. 8.7.4. 27 See, e.g., Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Albania (30 September 2019), Item 2.1, US Department of State, Country Reports on Human Rights Practices for 2018: Albania, 13 March 2019, at pp. 5-6. 28 Rasaratnam v Canada (MEI), [1992] 1 FC 706 (CA). --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC0-07746 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français