Date:
20130819
Docket: IMM-10084-12
Citation: 2013 FC 880
Ottawa, Ontario, August 19, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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ZLATKO
STRUGAR, SANDRA STRUGAR, LEONARDA STRUGAR, TEODOR STRUGAR,
and KAROLA
PONGRAC
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant family members are all Croatian citizens. They arrived
together in Canada on August 24, 2011, and sought refugee protection on August
31, 2011, on the basis that Mrs. Strugar is a lesbian and because of that she
and her family suffered persecution in Croatia.
[2]
Mrs. Strugar is legally married to Mr. Strugar who knew that she was a lesbian
when he married her; however, they agreed to raise children together and to
have separate sexual relationships. The marriage would allow them to have a
family, and would provide a cover for Mrs. Strugar’s homosexuality.
[3]
Two years prior to fleeing Croatia, people in Mrs. Strugar’s community witnessed
her kissing her girlfriend goodbye in a parked car near a bus stop. Members of
her community then began to threaten her, her husband, her mother, and her
children. Mrs. Strugar’s son, Teodor, was targeted at school and got into
several fights with children who had found out that Mrs. Strugar was a
lesbian. Teodor has been hospitalized twice as a result of these incidents –
once for a broken arm, and once after his calf muscle on his right leg was cut.
[4]
The Board determined that the applicants were neither Convention
refugees nor persons in need of protection pursuant to sections 96 and 97(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27. It found that Mrs. Strugar was not
credible and that the applicants had failed to rebut the presumption of state
protection. Both findings are challenged by the applicants and they further
submit that the Board erred in failing to make any clear finding as to whether
or not Mrs. Strugar was lesbian and thus failed to provide a transparent
factual analysis underlying its conclusion that the applicants do not have a
fear of persecution based on a Convention ground.
[5]
I agree with the applicants that the Board’s credibility finding is
unreasonable. The Board found that Mrs. Strugar’s credibility had been
undermined primarily because it found her explanation as to how she met other
lesbian women in coffee shops to be implausible and because the act of risking
a passionate kiss near a public bus stop in the middle of the day was
inconsistent with her testimony that she was careful to hide her sexual
orientation.
[6]
Latsabidze v Canada (Minister of
Citizenship and Immigration), 2012
FC 1429, and other decisions of this Court have cautioned against making
credibility findings supported merely by the fact that the trier of fact found
the evidence to be implausible without any explanation or analysis to explain
why that was found to be so. Here, in this very brief decision, the Board
fails to provide any factual or legal analysis underlying its view as to implausibility.
[7]
I agree with the respondent that the Board also rested its credibility
finding on the observation that significant events were omitted from the
Personal Information Form. Nonetheless, the Board, in my view, was clearly
unreasonable in stating that her failure to list and name her lovers in Croatia was one such omission. The form directs the claimant to “set out the significant
events and reasons that have led you to claim refugee protection in Canada” and in this case it had nothing to do with her lovers’ identities but only with her
sexual orientation. It was open to the Board, as it did, to question her as to
their identities and relationship, but the mere omission from her PIF of this
information is not a reasonable basis to bring her credibility into question.
[8]
Although the Board’s state protection analysis is a mere paragraph, I
find it to be reasonable. The only attempt made by any of the applicants was
one inquiring as to state protection. Mrs. Strugar asked a friend who was a
police officer for advice and was told that she should not approach the police
unless she was harmed, as doing so would reveal her to be a lesbian. That
advice was received prior to her being revealed to be a lesbian and prior to
the “attacks” that led the family to leave Croatia. It is not unreasonable for
the Board to conclude that this was not an attempt to seek state protection.
It was the only effort made by these applicants. Accordingly, the finding that
no attempt had been made to seek protection is reasonable.
[9]
Further, the Board’s conclusion, based on the record, that protection
was available to gays and lesbians, is also reasonable and was not rebutted by
the applicants who “provided no evidence other than her words or belief” that
they would not obtain any protection. I note that even her friend, the police
officer, made no such statement to her but rather advised her to wait until she
had been harmed to seek police protection. Presumably he based his advice on
his belief that police protection would be forthcoming.
[10]
Lastly, I agree with the respondent that this case is distinguishable
from Odetoyinbo v Canada (Minister of Citizenship and Immigration), 2009
FC 501. At paragraph 8, Justice Martineau observed:
In the case at bar the Board did not
explicitly state in its reasons that it did not believe that the applicant was
bisexual. Accordingly, it could not ignore compelling objective evidence on
record demonstrating the abuses which gay men are subjected to in Nigeria. Therefore, even if the Board rejected the applicant’s account of what happened to
him in Nigeria, it still had a duty to consider whether the applicant’s sexual
orientation would put him personally at risk in his country.
[11]
Although there was no explicit statement that the Board found Mrs.
Strugar to be a lesbian, the Board did consider whether that sexual orientation
would put her personally at risk in Croatia and found that state protection was
available and adequate.
[12]
Although the Board’s credibility findings are unreasonable, the state
protection finding cannot be disturbed and thus this application is dismissed.
No question was proposed for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application is dismissed and no question is certified.
"Russel W. Zinn"
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