Canada’s Immigration and Refugee Board (IRB) granted Montenegro’s highest-profile gay activist asylum Nov 22, after agreeing that Zdravko Cimbaljevic’s government failed to protect him from death threats and attacks.
“I feel relieved,” Cimbaljevic says. “This proves that the Canadian government has taken my case seriously and actually came to the conclusion to protect me.”
Cimbaljevic, who sought asylum in Vancouver on Sept 11, says his IRB hearing was “emotional and difficult.”
“I was crying. I just couldn’t hold it in,” he says. “The government of Montenegro has failed the test of protection for not only me but all its people, and has failed to prosecute those who would threaten and bring violence to others.”
The IRB says it can’t provide Xtra with minutes from the hearing due to confidentiality rules, but lawyer Rob Hughes describes his client’s case and the board’s decision as “very, very clear.”
Hughes says the IRB’s decision to accept Cimbaljevic’s refugee claim rested on concrete evidence that Montenegro had failed to protect him.
“The key issue in the case was lack of state protection,” Hughes says. “It’s presumed that every state will protect its citizens. But that can be rebutted. In this case, [the IRB] held that there was clear evidence that Montenegro was not protecting its citizens, in particular, Cimbaljevic.”
“In every refugee case, claimant credibility is an issue,” Hughes continues. “Everything he [Cimbaljevic] said was consistent with the documentary evidence. There was a lot of strong documentary evidence, more than we usually hear.”
Cimbaljevic says the IRB considered his testimony along with documents such as Montenegro’s 2013 progress report from the European Commission.
The progress report, a parliamentary tool used to examine relations between Montenegro and the European Union, states that in Montenegro “shortcomings persist in the area of human rights by judicial law and enforcement authorities, particularly as it regards vulnerable groups, especially the Roma, the lesbian, gay, bi- and trans-sexual population and disabled persons.”
The report further acknowledges that there is a “high-level of homophobia in the country which needs to be addressed.”
Cimbaljevic, who runs the small Balkan country’s LGBT Forum Progress and organized its first Pride event this year, says he spent three years fighting anti-gay groups.
“For years I was the only transparent person who would speak out publicly about this issue,” he says. “I feel sad for my country that I belonged to. The country that didn’t want to protect me. All of this work that I have done to make Montenegro a better country filled with better, more tolerant and accepting people has put my life in danger from those filled with hate and ignorance.”
Hughes says Cimbaljevic’s high profile as a gay activist made it easier to prove to the IRB that he is gay and in jeopardy. The many letters of support that he received helped too.
Individuals living outside the international spotlight often have a much more difficult time proving their sexuality to the IRB when seeking refugee status, Hughes notes.
Hughes says the legislated timeframe between filing for refugee status and getting an IRB hearing is too short for many LGBT claimants to obtain the necessary documentation to prove they’re gay and therefore qualify for asylum as a “member of a particular social group” that’s being persecuted. Especially if the claimant comes from a homophobic country where being openly gay is dangerous, it can be difficult to provide evidence of their sexuality.
Prior to legislative changes to Canada’s immigration rules in December 2012, refugee claimants could wait up to two years for a hearing, notes Chris Morrissey, co-founder of the Rainbow Refugee Committee. Now individuals have no more than 60 days to schedule a hearing after they claim refugee status at the airport or at an immigration office. While the process is quicker, Morrissey says it can also be problematic for the claimant.
“There is less time for a refugee claimant to make connections, get to know people and navigate paperwork for a hearing,” she explains.
“It’s good to get an early determination of a claim because it eliminates uncertainty, but the downside is that it is very difficult to prepare for a hearing in a short timeframe,” he says.
“Zdravko was able to get his claim very quickly but many people come here with little or no documentary evidence and they have to scramble to get that and that takes time,” he explains.
While he has observed a decline in refugee claims, Hughes says he still sees a “fairly steady flow” of LGBT asylum-seekers in his practice — some of whom have been denied.
“It’s very serious to be sent back if you don’t qualify,” Morrissey says. “They have to go back in to the closet in order to be safe.”