2024 RLLR 150
Citation: 2024 RLLR 150
Tribunal: Refugee Protection Division
Date of Decision: July 25, 2024
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Steven Beiles
Country: Ukraine
RPD Number: VC4-03691
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of XXXX XXXX (the “claimant”), as a citizen of Ukraine, who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ALLEGATIONS
[2] The following is a brief synopsis of the allegations put forth by the claimant in his Basis of Claim (BOC) form.[2]
[3] He fears persecution at the hands of Russian forces due to the current war and fears persecution at the hands of authorities and society in Ukraine due to his ethnicity as Roma.
[4] The claimant is an ethnic Roma. He has provided details about his experience at the hands of society and authorities in Ukraine due to his ethnicity. More recently the claimant was physically assaulted by ultra nationalists on June 7, 2022, leaving him severely injured. He arrived in Canada in XXXX XXXX, 2022, and later filed his claim for refugee protection.
DETERMINATION
[5] I find that the claimant is a Convention refugee as he has established a serious possibility of persecution for the following reasons.
ANALYSIS
Identity
[6] I find that the claimant’s identity as a national of Ukraine is established, on a balance of probabilities, based on a certified copy of his Ukrainian passport on file.[3]
Nexus
[7] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion. The persecution that the claimant fears in this case has nexuses to the Convention grounds of ethnicity and nationality. Therefore, his claim has been assessed under section 96 of the IRPA and not under section 97.
Credibility
[8] The Board presumes claimants are telling the truth unless there is a valid reason to doubt it. However, this presumption does not apply to inferences and speculations. In this case, the claimant testified in a straightforward and spontaneous manner.
[9] He has also provided corroborating documentary evidence[4] to support his claim, which includes documents showing his Roma ethnicity. I have no reason to doubt the genuineness of these documents and accept them as genuine. Based on his testimony, I find the claimant to be a credible witness and accept his allegations to be true on a balance of probabilities, including his subjective fear of returning to Ukraine.
Well-Founded Fear of Persecution and Risk of Harm
[10] To establish his status as a Convention refugee, the claimant had to show that there was a serious possibility that he would be persecuted if removed to Ukraine.
[11] I find that the objective evidence supports his subjective fears and establishes a serious possibility of persecution for the claimant if he is forced to return to his country. My reasons are as follows. The claimants fear persecution due to the war waged by Russia on Ukraine. Objective evidence states that:
Russian forces have repeatedly launched devasting and indiscriminate strikes using internationally banned cluster bombs on populated residential areas, killing and injuring scores of civilians. In barrage after barrage, men, women and children have been killed and injured in their homes and in the streets, in playgrounds and cemeteries, while queueing for humanitarian aid or shopping for food.[5]
[12] Human Rights Watch states that:
Russia’s full-scale invasion of Ukraine starting on February 24, 2022, has left a terrible path of destruction in its wake. This has brought unimaginable personal suffering, as Russia seeks to erase Ukraine’s sovereignty and to crush Ukrainians’ resilience. Russia has committed countless war crimes including extrajudicial killings, torture, sexual violence, and indiscriminate bombings of civilians, schools, hospitals, and residential areas. It has also repeatedly attacked energy infrastructure making civilian lives precarious and insecure. The impact reaches beyond Ukraine’s borders. More than 14 million Ukrainians have been forced to flee their homes, over half of them leaving the country, with 5 million coming to Europe.[6]
[13] Roma Rights Centre, in its report dated March 2018, states that:
Roma’ are known as one of Europe’s oldest, largest and most disadvantaged ethnic minorities. In fact, the term ‘Roma’ usually encompasses a wide diversity of groups with ‘complex and multi-layered’ identities. Some, but not all Roma speak Romanes or other languages specific to Romani communities. There are also people who do not identify as Roma at all who are nonetheless the targets of antigypsyism. For the purpose of this report, as for the “Roma Belong – Statelessness, Discrimination and Marginalisation of Roma in the Western Balkans and Ukraine”, we use the term ‘Roma’ to encompass all groups in the region who are subject to antigypsyism, in line with the Council of Europe definition. Roma came to Europe many centuries ago in the Middle Ages from what is now India. The Council of Europe estimates there to be around 10 to 12 million Roma in Europe. The majority of Roma have a nationality, but the number of stateless Roma in Europe is largely unknown, as disaggregated data on the Roma population is lacking, particularly in non-EU countries. Roma are widely regarded as one of Europe’s most marginalised communities. They experience discrimination and rights deprivations in various forms, including police brutality, school segregation and denial of the right to work. [7]
[14] The objective evidence above indicates that the Russian state and its military agents in Ukraine are targeting Ukrainians as they do not recognize Ukraine as a distinct nation or anyone identifying themselves as Ukrainian. The objective evidence discussed above also establishes that Roma are victims of hate crimes, face brutal assaults, and are targeted by both state and society.
[15] Therefore, based on all the evidence before me, I find that the claimant will face a serious possibility of persecution due to his nationality and ethnicity, if forced to return to Ukraine. I find that his fears are indeed well-founded.
State Protection
[16] The claimant will be unable to access adequate state protection in Ukraine as the country is being attacked through not only land but aerially as well.
[17] As discussed above, Russia has waged a full-scale war in Ukraine, leaving millions displaced and thousands dead, an action which continues unabated.
[18] Therefore, I find that the presumption of state protection has been rebutted in this case as Ukraine’s security resources are being utilized in the war, thereby leaving the nation unable to protect its citizens adequately.
Internal Flight Alternative (IFA)
[19] The final issue before me is that of an IFA in Ukraine where the claimant can live safely.
[20] In its March 2022 Position on Returns to Ukraine, the UNHCR notes that the situation is volatile “in the entire territory of Ukraine” and that it “does not consider it appropriate to deny international protection to Ukrainians and former habitual residents of Ukraine on the basis of an internal flight or relocation alternative.”[8]
[21] Therefore, I find, on a balance of probabilities, that the claimant does not have a viable IFA in Ukraine.
CONCLUSION
[22] Based on the analysis above, I conclude that the claimant is a Convention refugee under section 96 of IRPA. Accordingly, I accept his claim.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Exhibits 2, 7.
[3] Exhibit 1.
[4] Exhibits 4, 5.
[5] Exhibit 3, National Documentation Package, Ukraine, 28 June 2024, tab 1.27: “Anyone can die at any time”: Indiscriminate attacks by Russian forces in Kharkiv, Ukraine. Amnesty International. 13 June 2022. EUR 50/5682/2022.
[6] Exhibit 3, National Documentation Package, Ukraine, 28 June 2024, tab 2.9: Ukraine: Human Cost of Brutal Russian Invasion. Human Rights Watch. Hugh Williamson. 24 February 2023.
[7] Exhibit 3, National Documentation Package, Ukraine, 28 June 2024, tab 13.1: Roma Belong: Statelessness, Discrimination and Marginalisation of Roma in Ukraine. European Roma Rights Centre. March 2018.
[8] Exhibit 3, National Documentation Package, Ukraine, 28 June 2024, tab 1.23: UNHCR Position on Voluntary Return to Ukraine. United Nations High Commissioner for Refugees. June 2023.