Federal Court Decisions

Decision Information

Shameti v. Canada (Citizenship and Immigration)

Court (s) Database Federal Court Decisions
Date 2008-05-26
Neutral citation 2008 FC 665
File numbers IMM-5156-07

Decision Content

 

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”

Judge

 

 

 

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:

 

David Yerzy

 

FOR THE APPLICANT

David Joseph

 

FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

David Yerzy

Barrister & Solicitor

Toronto, Ontario

 

FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

Toronto, Ontario

FOR THE RESPONDENT

 

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