ADRIANA GJONI Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2019 FC 79

Date: 20190119 Docket: IMM-395-19 Citation: 2019 FC 79 Ottawa, Ontario, January 19, 2019 PRESENT: Mr. Justice Grammond BETWEEN: ADRIANA GJONI Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS [ 1 ] Ms. Gjoni brings a motion for a stay of her removal from Canada scheduled for later today. The motion was heard this morning by teleconference. I am granting the motion, because the enforcement officer who denied Ms. Gjoni’s request for deferral of her removal failed to appreciate that new facts, not considered by the RPD and RAD, showed that Ms.

Gjoni could be exposed to a risk to her life if returned to Albania. [ 2 ] I have discussed the legal framework governing motions for stay of removal in the context where a new risk is alleged in a recent decision, Thuo v Canada (Public Safety and Emergency Preparedness) , 2019 FC 49 [ Thuo ], and I will not repeat what I said there. Given the urgency of the matter, I will state my view of the case succinctly. [ 3 ] Ms. Gjoni, a citizen of Albania, says that she is lesbian. Due to family pressure, she nevertheless married a man. Her family discovered her sexual orientation in 2011, and she was divorced in 2013.

Yet, her ex-husband kept harassing her, and incidents of increasing violence culminated in an assault in late 2016 that took place in her shop. Fearing for her life, she then decided to flee Albania. [ 4 ] She came to Canada in early 2017 and claimed refugee status. The Refugee Protection Division [RPD] denied her claim, as it found that Ms. Gjoni could avail herself of the protection of the police in Albania and had failed to do so. Moreover, the RPD found that Ms.

Gjoni’s failure to claim refugee status during previous trips to Italy and Germany and subsequent return to Albania negated her subjective fear of persecution. The RAD dismissed Ms. Gjoni’s appeal, on the sole basis of state protection. [ 5 ] Ms. Gjoni’s application to defer her removal was based on the arson that allegedly took place at her apartment in Tirana on June 12, 2018.

The evidence of that incident consists of the following: • A report dated June 15, 2018 by an expert who attended the scene and who came to the conclusion that the fire was started deliberately and was caused by a “Molotov cocktail” or bottle of gasoline. The report also mentions that “unknown people were seen breaking the exterior door and throwing a Molotov cocktail” and that a neighbour had identified one of the persons as Ms.

Gjoni’s ex-husband. • A written statement made by the neighbour on July 25, 2018 to the effect that upon hearing loud noise in the hallway, she went to her door, looked through the “magical eye” and saw Ms. Gjoni’s ex-husband yelling and kicking at the door, a bottle in his hand. She heard him yelling death threats against Ms. Gjoni. The neighbour also mentions that as she frequently saw the ex-husband associating with policemen, she did not take any steps to “testify to the police.” • A short affidavit from Ms.

Gjoni, dated January 3, 2019, describing the event and stating that her neighbour had identified her ex- husband as the culprit and told the police, but that the police did nothing. Pictures showing the damage are attached to the affidavit. [ 6 ] The enforcement officer denied Ms. Gjoni’s request for deferral, however, on the basis that the risks associated with the arson “stem from the same issues” addressed by the RPD and RAD. The officer found that Ms. Gjoni had “received a thorough assessment of her risk.” [ 7 ] I conclude that Ms.

Gjoni has raised “quite a strong case” that the enforcement officer’s decision is unreasonable. As I explained in Thuo , while enforcement officers should not perform a risk assessment themselves, they must defer removal when there is an indication that a significant new risk has not been assessed. In this case, while the issue of harassment by her ex-husband was the basis for Ms. Gjoni’s claim for refugee status, the arson appears to be a serious escalation of the violence. Moreover, the incident appears to negate the finding of state protection made by the RPD and RAD.

While I cannot provide a full review now, I am concerned that the RPD and RAD focused more on efforts and good intentions than on the applicable test of operational adequacy, and mainly reviewed evidence concerning the treatment of LGBT persons, omitting to consider how the police responded to complaints related to domestic violence, which is a crucial aspect of the persecution alleged by Ms. Gjoni.

In this regard, the United States Department of State’s most recent human rights report for Albania notes “pervasive corruption in all branches of government” and contains the following statements: 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. Poor leadership and a lack of diversity in the workforce contributed to continued corruption and unprofessional behavior. […]

The law includes provisions on sexual assault and sexual harassment and makes the criminalization of spousal rape explicit. The government did not enforce the law effectively. Officials did not prosecute spousal rape. The concept of spousal rape was not well understood, and authorities often did not consider it a crime. Domestic violence against women remained a serious problem.

Police often did not have the training or capacity to deal effectively with domestic violence cases. [ 8 ] Likewise, in its latest five-year review of the situation in Albania, the United Nations Human Rights Committee noted: […] the Committee notes with regret the continuing reports of domestic violence against women and children, including corporal punishment. It is particularly concerned at reports of ineffective police investigation into complaints of domestic violence, which in turn result in actual impunity of perpetrators.

The Committee is also concerned about the rare number of convictions and the lack of follow-up to protection orders, rendering them largely ineffective. (UN Doc. CCPR/C/ALB/CO/2 at para 11 (22 August 2013)) [ 9 ] The Minister sought to impugn the credibility of the evidence of the arson. While it would have been preferable to have more detailed evidence, I am not convinced that the evidence provided is contradictory or otherwise unreliable.

It includes a report from what appears to be a State agency, which, in principle, should be presumed to be accurate. [ 10 ] The Minister also pointed out that the arson took place on June 12, 2018, a few days before the decision of the RAD was rendered on June 28, 2018. However, given the time necessary to obtain evidence from Albania, Ms. Gjoni cannot be faulted for not having notified the RAD of the event immediately. [ 11 ] Ms.

Gjoni also argued that the enforcement officer failed to take into consideration a report describing her psychological condition, as well as the best interests of the children of her neighbour in Canada, with whom she has established close bonds since her arrival. I would not give effect to these submissions, as they relate to unfortunate but inherent consequences of removal.

The psychological evidence is not comparable to that which justified a stay of removal in cases such as Konaté v Canada (Public Safety and Emergency Preparedness) , 2018 FC 703 , Nagarasa v Canada (Citizenship and Immigration) , 2018 FC 313 , and Tiliouine v Canada (Public Safety and Emergency Preparedness) , 2015 FC 1146 . [ 12 ] I also conclude that Ms. Gjoni has shown that her return to Albania would expose her to a serious possibility of irreparable harm. In this case, serious issue and irreparable harm are closely intertwined. Suffice it to say that the arson would have put Ms.

Gjoni’s life in danger, had she been present, and shows the extent to which her ex-husband is prepared to harm her. [ 13 ] Lastly, I find that the balance of convenience favours Ms. Gjoni, who is a self-supporting, law-abiding person. Where an applicant shows a serious issue and irreparable harm, the balance of convenience is usually in the applicant’s favour, unless specific circumstances disentitle the applicant from obtaining a stay.

There are no such circumstances in the present case. [ 14 ] Accordingly, as the three-part test outlined in R v Canadian Broadcasting Corp , 2018 SCC 5 , [2018] 1 SCR 196, is satisfied, I will stay Ms. Gjoni’s removal from Canada. ORDER in IMM-395-19 THIS COURT ORDERS that 1. The applicant’s removal from Canada is stayed until the final disposition of the present application for leave and judicial review. “Sébastien Grammond” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-395-19 STYLE OF CAUSE: ADRIANA GJONI v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: January 19, 2019 order and REASONS: GRAMMOND J. DATED: January 19, 2019 APPEARANCES : John O. Grant For The Applicant ADRIANA GJONI Erin Estok For The Respondent THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS SOLICITORS OF RECORD : John O. Grant Barrister and Solicitor Mississauga, Ontario For The Applicant ADRIANA GJONI Attorney General of Canada Ottawa, Ontario For The Respondent THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS