Docket: IMM-3078-13
Citation:
2015 FC 407
Ottawa, Ontario, March 31, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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LJUBISA
GALOGAZA
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Mr Ljubisa Galogaza, a citizen of Croatia,
claimed refugee protection in Canada based on his fear of persecution due to
his Serbian ethnicity and his sexual orientation. A panel of the Immigration
and Refugee Board rejected his claim, finding that adequate state protection
was available in Croatia.
[2]
Mr Galogaza argues that the Board’s decision was
unreasonable, mainly because the Board relied on Croatia’s efforts to protect
its citizens rather than its actual ability to do so. Mr Galogaza asks me to quash
the Board’s decision and order another panel to reconsider his claim.
[3]
I agree with Mr Galogaza that the Board erred in
its analysis of state protection, and as a result, arrived at an unreasonable
conclusion. I must, therefore, allow this application for judicial review and
grant the relief Mr Galogaza requested.
[4]
The sole issue is whether the Board’s analysis
of state protection was unreasonable.
II.
The Board’s Decision
[5]
The Board noted that the burden fell on Mr
Galogaza to present clear and convincing evidence of a lack of state protection
in Croatia. It also declared that a failure to seek protection is normally
fatal to a refugee claim originating from a democratic state.
[6]
The Board reviewed the documentary evidence and
found that:
•
Serbs and homosexuals face pervasive
discrimination and violence in Croatia;
•
The government of Croatia is attempting to
prosecute those who abuse human rights, but there is no guarantee of
punishment;
•
Violent protests marked the first Pride Parade
in Split, and police did little to prevent them;
•
A later Pride Parade in Zagreb received greater
police protection;
•
Police have been criticized for failing to
protect sexual minorities;
•
Only 6% of sexual minorities subjected to
violence make police reports;
•
Areas outside Zagreb are generally hostile to
sexual minorities – hate crimes in those areas are common;
•
Crimes motivated by an animus against sexual
minorities are treated more seriously than other crimes;
•
Legislation prohibits discrimination based on
sexual orientation and leaders have condemned acts of discrimination;
•
However, laws on the books are not implemented
and have done little to reduce discrimination for sexual minorities.
[7]
Based on this evidence of Croatia’s serious efforts to protect minorities, the Board found that adequate, albeit not perfect,
state protection was available to Mr Galogaza, and rejected his claim.
III.
Was the Board’s analysis of state protection
unreasonable?
[8]
The Minister argues that the Board’s analysis
was reasonable in light of the evidence before it. Further, according to the
Minister, the Board rightly found that Mr Galogaza had a duty to approach state
officials to seek out protection, and having failed to do so, his claim cannot
stand.
[9]
I disagree.
[10]
In my view, the Board unduly emphasized
Croatia’s efforts to improve the situation faced by minorities and downplayed
its failure to achieve concrete results. Further, the Board imposed an
obligation on Mr Galogaza to seek out state protection which, in his
circumstances, is not legally required.
[11]
The measures that a state has taken to deal with
discrimination and persecution are obviously relevant to refugee claims given
that the definition of a refugee refers to those who are unable to avail
themselves of the protection of their country of origin (see Immigration and
Refugee Protection Act, SC 2001, c 27, s 96 [IRPA]; see Annex).
[12]
However, a state’s efforts, on their own, do not
establish that protection was actually available to the claimant:
[E]vidence of a
state’s efforts does not help answer the main question that arises in cases of
state protection – that is, looking at the evidence as a whole, including the
evidence relating to the state’s capacity to protect its citizens, has the
claimant shown that he or she likely faces a reasonable chance of persecution in
the country of origin? To answer that question, the Board has to decide whether
the evidence relating to the state resources actually available to the
applicants indicated that they would probably not encounter a reasonable chance
of persecution if they returned to [their country of origin] (Moczo v Canada
(Minister of Citizenship and Immigration), 2013 FC 734, at para 10; Beri
v Canada (Minister of Citizenship and Immigration), 2013 FC 854, at para
46).
[13]
Here, the Board never answered that main
question. In addition, the evidence before it actually showed that Mr Galogaza
would face a reasonable chance of persecution notwithstanding the state’s
efforts to address discrimination against ethnic and sexual minorities.
[14]
Further, there is no absolute requirement to
approach state authorities for protection. The definition of a refugee
specifically includes those who are unwilling, out of fear of persecution, to
avail themselves of state protection (IRPA, s 96). Mr Galogaza feared openly
disclosing his sexual orientation because it could well have led to further
persecution, not protection. The evidence shows that most homosexuals in
Croatia choose, out of fear, not to disclose their sexual orientation or to
report the violence to which they are subjected. On the evidence, therefore, Mr
Galogaza’s fear was not unreasonable.
[15]
In addition, any obligation to approach state
authorities for protection could only arise in circumstances where protection
was likely to be provided. Again, the documentary evidence before the Board did
not support the existence of protection for persons in Mr Galogaza’s
circumstances. Therefore, his failure to seek protection was not fatal to his
claim.
IV.
Conclusion and Disposition
[16]
The Board’s conclusion on state protection did
not represent a defensible outcome based on the law and the evidence before it.
Therefore, I must allow this application for judicial review and order another
panel of the Board to reconsider Mr Galogaza’s claim. Neither party proposed a
question of general importance for me to certify, and none is stated.
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