Category: Russia

Citation: 2021 RLLR 17
Tribunal: Refugee Protection Division
Date of Decision: July 9, 2021
Panel: Megan Kammerer
Counsel for the Claimant(s): Samuel E. Plett
Country: Russia
RPD Number: VC0-03444
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000066-000073

On July 9, 2021 the Refugee Protection Division (RPD) heard the claim of XXXX XXXX XXXX A.K.A. XXXX, who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral POSITIVE decision and reasons for decision. This is the written version of the oral decision and reasons that have been edited for clarity, spelling, grammar and syntax, where appropriate.

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, who also goes by the chosen name of, XXXX XXXX, and is referred to as “the claimant” in this decision, as a citizen of Russia, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[2]       In assessing this claim, I considered and applied the guidelines on sexual orientation and gender identity and expression; the SOGIE Guidelines, to ensure that appropriate accommodations remain in questioning the claimant, the overall hearing process, and in substantively assessing the claim.

Allegations

[3]       The claimant alleges that they identify as a non-binary transgender person. They allege that they face persecution in Russia due to both their gender identity and because they are a person born biologically male and are married to another person who is male. The claimant alleges that they fear persecution and violence from Russian authorities, members of the public, and their family.

Determination

[4]       I find that the claimant has a well-founded fear of persecution and is, therefore, a Convention refugee under section 96 of the Act.

ANALYSIS

Identity

[5]       I find that the claimant’s identity as a national of Russia has been established on a balance of probabilities by their testimony and a copy of their passport.

Credibility

[6]       When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is a reason to doubt their truthfulness. In this case, I have found no reason to doubt the claimant’s truthfulness. The claimant testified in a straightforward and convincing manner and answered all of the questions posed to them.

[7]       The claimant was able to speak in detail about their gender identity and their process of self-discovery, what it is like as a trans-gendered person in Russia, the discrimination they faced in Russia as a child, and the risks that they would face if they were to return to Russia.

[8]       In addition, the claimant has provided an extensive number of documents which corroborate their claim. These include the following: various documents which establish the ongoing spousal relationship between the claimant and their Canadian spouse, XXXX, including bene-fit payments, car insurance, property assessments, and mobile account information; various photographs depicting the claimant with their Canadian spouse, XXXX. There are a number of different photographs of different events in 2019 and 2020, including the claimant and XXXX wedding; an affidavit sworn by the claimant’s biological father, which corroborates the claimant’s allegations, and which outlines how and when the claimant disclosed their gender identity and relationship with XXXX to him in 2018; an affidavit sworn by the claimant’s stepmother, which corroborates the claimant’s allegations, which confirms that she and the claimant’ s father are aware of the claimant’s gender identity and consider it genuine, and which outlines how distressed and fearful the claimant was when they learned they may have to return to Russia; an affidavit of support from the claimant’ s mother, which generally corroborates the claimant’ s allegations and which confirms that she is aware of the claimant’s gender identity and is aware of the claimant’s relationship with XXXX; an affidavit of support from a friend of the claimant. The friend attests that she knows the claimant as a non-binary, transgender person, and provides evidence about her experiences living as a gender non-conforming person in Russia; an affidavit of support from the claimant’s former partner, XXXX XXXX (ph), which generally corroborates the claimant’s allegations, attests to the fact that they were in a romantic relationship before the claimant left Russia, and confirms that they had plans to both leave Russia, so that they could be together in another country; a letter of support from a representative of the XXXX XXXX XXXX. which provides services and supports to families in Oakville, Ontario. The representative confirms that the claimant identified themselves as non-binary when registering for this support, and that they seem pleased that other staff and volunteers were so accepting of their identity; a letter of support from a clinical psychologist who treated the claimant in the United States. Psychologist confirms that the claimant had a series of appointments in XXXX and XXXX 2019, which centred on issues of gender identity and the claimant’s fear of having to return to Russia. The psychologist confirms that during this time the claimant presented openly as transgender and that they explored the claimant’ s “journey to discover their gender identity as transgender and non-binary”. The psychologist states that in his professional opinion —

COUNSEL: Madam Member, I don’t mean to interrupt, but it looks like the claimant’s video is frozen.

MEMBER: Can you still hear me?

CLAIMANT: I can hear, yeah.

COUNSEL: Okay.

MEMBER: Okay.

COUNSEL: It’ s just your video’ s frozen.

MEMBER: I’ll continue on.

COUNSEL: Yeah.

MEMBER: I’ll continue on, but if at some point you ‘re not able to hear or you cut out, please try to let us know.

CLAIMANT: Okay.

COUNSEL: If — if — if your audio cuts out, just come to the office where I am and then I’ll let the Member know.

CLAIMANT: Will do, yeah.

COUNSEL: Thank you.

[9]       MEMBER: Okay. The psychologist states that in his professional opinion, the claimant’s expression of their gender identity as transgender and non-binary is genuine; a letter of support from the claimant’s physician in Canada, which confirms that when taking their initial health history, the claimant identified themselves as a non-binary person and mentioned potentially being interested in gender affirming therapy; a letter of support from the claimant’s former academic advisor in the United States, which generally confirms the claimant’s allegations; a letter of support from a friend of the claimant and their spouse, who attests to the fact that he often drove XXXX to the United States to meet the claimant, and that he was present at their wedding; a letter of support from a friend of the claimant, which indicates that they came out as transgender in 2019, and which indicates that the claimant is a XXXX of a XXXX called XXXX XXXX, which provides support and advocacy to transgender and non-binary individuals; a letter of support from a co-worker and friend of the claimant which confirms that he and claimant have discussed their gender identity and fear of returning to Russia as a LGBTQ+ person; and, a letter of support from a close friend of the claimant in the United States, which generally confirms the claimant’s allegations.

[10]     The claimant also indicated that their spouse, XXXX, was available to act as a witness. I did not find it necessary to ask XXXX to testify, given the extensive documentary evidence submitted and the credible nature of the claimant’s testimony. I note that the claimant did not initiate a refugee claim in the United States even though they lived in that country for several years. They explained that this is because their spouse is Canadian and that they did not want to be separated from their spouse for the length of time it would take for their claim to be processed.

[11]     The claimant also explained that the political climate in the United States at the time was negative and hostile towards LGBTQ+ persons and that they were afraid of being detained in unsafe conditions, given their status as a gender non-conforming individual. I accept this explanation and do not find that it undermines the claimant’s credibility or subjective fear.

[12]     I note as well that the claimant has visited their mother in France and did not make a refugee claim there. The claimant explained that this was because they did not want to be separated from their Canadian spouse. I accept this explanation and do not find that it undermines the claimant’s credibility or subjective fear.

[13]     I find the claimant to be credible and I believe what they have alleged in support of their claim.

Nexus

[14]     The claimant alleges that they are at risk, due to both their gender identity and their perceived sexual orientation. I find that the persecution the claimant fears has a nexus to the Convention ground of particular social group; namely, transgendered individuals and individuals who are perceived to be LGBTQ+. I have, thus, assessed this claim under section 96 of the Act.

The Claimant’s Status in the United States

[15]     The claimant lived in the United States from 2012 until 2019, during which time they were enrolled in a graduate program at the University of Massachusetts. The claimant testified that they had a student visa and has provided a copy of a certificate of eligibility for non-immigrant student status, as well as various other documents confirming their immigration status.

[16]     The claimant testified that they became scared about the possibility of having to return to Russia when they graduated from their university program because they did not have permanent status in the United States, and that they explored the possibility of obtaining and employment visa; although this was ultimately unsuccessful.

[17]     I find that the clamant does not have status substantially similar to that of a national or access to such status in the United States, and is, therefore, not excluded pursuant to Article 1(e) of the refugee Convention. I note that the claimant’s father is an American citizen and has been living in the United States since approximately 1997, and that the claimant’s mother is a citizen of France and has been living there since approximately 2010.

[18]     The objective evidence in the National Documentation Packages for both countries indicates that the claimant, as an adult, does not have a right to citizenship of either country by a virtue of the parent-child relationship.

[19]     I, thus, find that neither the United States nor France is a country of reference in this claim.

Well-Founded Fear of Persecution

[20]     The claimant identifies as a non-binary transgender person. They testified that their earliest memories are of being gender non-conforming and recounted being bullied and harassed at school for presenting as too feminine. The claimant explained that they started the process of discovering their identity when they started college in Russia through exposure to the internet and Western sources.

[21]     The claimant testified about the process of discovering their transgender identity and the role that their spouse, XXXX, played in that process. They reference the fact that they had experienced a lot of pressure to conform throughout their life and that XXXX was the first person who they could talk to about their gender identity and who supported their self-discovery.

[22]     The claimant testified about the risks they would face if they were to return to Russia. They indicated that transgender people who do not fit into gender norms are at risk of physical violence. They reference being aware of several cases where transgendered people have been killed or injured due to their gender identity. They also indicated that, in general, Russian society is very hostile to transgender people and that their family in Russia would not be accepting of their identity.

[23]     The objective evidence demonstrates that LGBTQI+ peoples, including those who are transgender and those who are perceived to be homosexual, face treatment in Russia that amounts to persecution. Although homosexuality has been decriminalised in Russia since 1993, in 2013, a law banning the promotion of “non­ traditional sexual relations” came into force.

[24]     Sources cited Item 6.1 of the National Documentation Package indicate that the law is frequently invoked to punish the exercise of free speech by LGBTQI+ persons and their supporters. The government uses a law to restrict any materials that directly or indirectly approve of persons who are non-traditional sexual relationships and to limit the rights of persons who advocate for LGBTQI+ rights or express the opinion that homosexuality is normal.

[25]     The United States Department of State Item 2.1 of the National Documentation Package identifies crimes involving violence or threats of violence against LGBTQI+ persons as one of the most significant human rights issues in Russia. There are reports of State actors committing violence against LGBTQI+ persons based on their sexual orientation or gender identity. There are also reports of government agents attacking, harassing, and threatening LGBTQI+ activists. Sources cited at Item 6.1 of the National Documentation Package further indicate that state controlled media engages in a “homophobic campaign”, which is directed against LGBTQI+ persons. Reports have identified a number of recurring themes and mainstream media coverage in Russia, including statements by public officials that portray LGBTQI+ identities as contradictory or Russian and Orthodox values and as a Western phenomenon imposed by Europe as part of an agenda to weaken and alienate Russia.

[26]     The UK Home Office at Item 6.4 of the National Documentation Package reports that politicians use transphobic hate speech, which encourages stigma and intolerance amongst the population. Sources indicate that LGBTQI+ persons in Russia face discrimination and are exposed to the threat of violence in their places of study or work when searching for housing and when attempting to access medical care. This is so, even if an individual is not officially out, but simply presents as gender non-conforming. According to one source cited at Item 6.1 of the National Documentation Package, “even if LGBT individuals are not officially out, it is enough for individuals to be suspected of being gay or lesbian for them to be the subject of verbal or physical abuse. Failing to adhere to established gender norms in dress or behaviour, being overly affectionate to someone of the same sex or living with someone of the same sex are tantamount to coming out and can thus result in the risks set out above.”

[27]     Sources indicate that medical practitioners limit or deny LGBTQI+ persons health services due to intolerance and prejudice. The Russian LGBT network representative cited at Item 2.1 of the National Documentation Package indicates that upon disclosing their sexual orientation or gender identity, LGBTQI+ individuals often encounter strong negative reactions and the presumption that they are mentally ill.

[28]     Sources cited at Item 2.1 of the National Documentation Package also indicate that transgender persons are uniquely vulnerable to discrimination. This is in part because transgender persons face difficulty updating their names and gender markers on government documents to reflect their gender identity and because the government has not established standard procedures, and many civil registry offices deny their requests. When documents fail to reflect their gender identity, transgender persons face harassment by law enforcement officers and discrimination in accessing health care, education, housing, transportation, and employment.

[29]     Moreover, the United States Department of State at Item 2.1 of the National Documentation Package, reports that the LGBTQI+ persons are particular targets of societal violence and that the police often fail to respond adequately to such incidents. For example, the Russian LGBT network reported that a transgender man was attacked while he was leaving a supermarket in the Kursk Region in April 2020. The assailant grabbed a man by the neck, beat him, and threatened to kill him. The man sustained serious injuries. Although he filed a report, the police did not investigate the incident and refused to open a criminal case.

[30]     There are numerous other similar examples of the failure of the authorities to respond when violence or credible threats of violence are made against LGBTQI+ persons, and these are cited in the National Documentation Package.

[31]     There are also reports that Item 2.1 of the National Documentation Package that the authorities have conducted involuntary physical exams of transgender persons, physically and sexual abuse transgender people, and subjected transgender individuals to detention, assault, harassment, and humiliating treatment. The UK Home Office reports at Item 6.4 of the National Documentation Package, that law enforcement personnel used violence and torture to extract confessions. As well, as is set out in the SOGIE guidelines, it is well-established in law that being compelled to conceal one’s gender identity or sexual orientation constitutes a serious interference with fundamental human rights, and a claimant cannot be expected to conceal their gender identity as a way to avoid persecution.

[32]     It is apparent that the claimant has engaged in a significant measure of behavioural self-censorship while living in Russia, they have been unable to live openly as a non-binary transgendered person in Russia. The objective evidence in the National Documentation Package is overwhelming regarding the persecution and ill-treatment of member of the LGBTQI+ community, which includes transgendered persons, such as the claimant. I find that the claimant would face a serious possibility of persecution by the government as Russia — of Russia, as well as from non-state actors, if they were to return to their country of nationality.

State Protection

[33]     I have considered whether adequate state protection is available to the claimant in Russia and conclude that it is not. A State is presumed capable of protecting its citizens to rebut this presumption, a claimant must establish on a balance of probabilities with clear and convincing evidence that their State’s protection is inadequate. In this case, I find it would be objectively unreasonable for the claimant to seek state protection in Russia because it is in part the State that the claimant fears due to its pattern of persecution and prosecution of sexual minorities.

[34]     Further, the objective evidence demonstrates that there is no government support for LGBTQI+ persons in Russia and that the law does not prohibit discrimination against LGBTQI+ persons in housing, employment, or access to government services such as health care.

[35]     I, thus, find on a balance of probabilities, that the State would be unwilling or unable to provide adequate protection to the claimant if they were returned to Russia. The presumption of state protection has been rebutted.

Internal Flight Alternative

[36]     I have also considered whether a viable Internal Flight Alternative exists for the claimant and find that it does not. The evidence before me indicates that transgendered persons are persecuted throughout Russia. I, thus, find that the claimant faces a serious possibility of persecution throughout the entire country. The claimant does not have an IFA.

CONCLUSION

[37]     For these reasons, I find that the claimant is a Convention refugee, and I accept their claim. All right. So that concludes my decision in your claim.

CLAIMANT: Thank you.

MEMBER: You — I want to thank you very much for participating in this hearing today, and I want to welcome you to Canada.

CLAIMANT: Thank you so much.

MEMBER: Yeah. Thanks as well to you, Counsel. So, what I’m going to do now, is I’ll stop the recording and then I will disconnect the proceedings.

COUNSEL: Thank you Madam Member.

———- REASONS CONCLUDED ———-

Citation: 2021 RLLR 17
Tribunal: Refugee Protection Division
Date of Decision: July 9, 2021
Panel: Megan Kammerer
Counsel for the Claimant(s): Samuel E. Plett
Country: Russia
RPD Number: VC0-03444
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000066-000073

On July 9, 2021 the Refugee Protection Division (RPD) heard the claim of XXXX XXXX XXXX A.K.A. XXXX, who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral POSITIVE decision and reasons for decision. This is the written version of the oral decision and reasons that have been edited for clarity, spelling, grammar and syntax, where appropriate.

DECISION

[1]     MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, who also goes by the chosen name of, XXXX XXXX, and is referred to as “the claimant” in this decision, as a citizen of Russia, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[2]     In assessing this claim, I considered and applied the guidelines on sexual orientation and gender identity and expression; the SOGIE Guidelines, to ensure that appropriate accommodations remain in questioning the claimant, the overall hearing process, and in substantively assessing the claim.

Allegations

[3]     The claimant alleges that they identify as a non-binary transgender person. They allege that they face persecution in Russia due to both their gender identity and because they are a person born biologically male and are married to another person who is male. The claimant alleges that they fear persecution and violence from Russian authorities, members of the public, and their family.

Determination

[4]     I find that the claimant has a well-founded fear of persecution and is, therefore, a Convention refugee under section 96 of the Act.

ANALYSIS

Identity

[5]     I find that the claimant’s identity as a national of Russia has been established on a balance of probabilities by their testimony and a copy of their passport.

Credibility

[6]     When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is a reason to doubt their truthfulness. In this case, I have found no reason to doubt the claimant’s truthfulness. The claimant testified in a straightforward and convincing manner and answered all of the questions posed to them.

[7]     The claimant was able to speak in detail about their gender identity and their process of self-discovery, what it is like as a trans-gendered person in Russia, the discrimination they faced in Russia as a child, and the risks that they would face if they were to return to Russia.

[8]     In addition, the claimant has provided an extensive number of documents which corroborate their claim. These include the following: various documents which establish the ongoing spousal relationship between the claimant and their Canadian spouse, XXXX, including bene-fit payments, car insurance, property assessments, and mobile account information; various photographs depicting the claimant with their Canadian spouse, XXXX. There are a number of different photographs of different events in 2019 and 2020, including the claimant and XXXX wedding; an affidavit sworn by the claimant’s biological father, which corroborates the claimant’s allegations, and which outlines how and when the claimant disclosed their gender identity and relationship with XXXX to him in 2018; an affidavit sworn by the claimant’s stepmother, which corroborates the claimant’s allegations, which confirms that she and the claimant’ s father are aware of the claimant’s gender identity and consider it genuine, and which outlines how distressed and fearful the claimant was when they learned they may have to return to Russia; an affidavit of support from the claimant’ s mother, which generally corroborates the claimant’ s allegations and which confirms that she is aware of the claimant’s gender identity and is aware of the claimant’s relationship with XXXX; an affidavit of support from a friend of the claimant. The friend attests that she knows the claimant as a non-binary, transgender person, and provides evidence about her experiences living as a gender non-conforming person in Russia; an affidavit of support from the claimant’s former partner, XXXX XXXX (ph), which generally corroborates the claimant’s allegations, attests to the fact that they were in a romantic relationship before the claimant left Russia, and confirms that they had plans to both leave Russia, so that they could be together in another country; a letter of support from a representative of the XXXX XXXX XXXX. which provides services and supports to families in Oakville, Ontario. The representative confirms that the claimant identified themselves as non-binary when registering for this support, and that they seem pleased that other staff and volunteers were so accepting of their identity; a letter of support from a clinical psychologist who treated the claimant in the United States. Psychologist confirms that the claimant had a series of appointments in XXXX and XXXX 2019, which centred on issues of gender identity and the claimant’s fear of having to return to Russia. The psychologist confirms that during this time the claimant presented openly as transgender and that they explored the claimant’ s “journey to discover their gender identity as transgender and non-binary”. The psychologist states that in his professional opinion —

COUNSEL: Madam Member, I don’t mean to interrupt, but it looks like the claimant’s video is frozen.

MEMBER: Can you still hear me?

CLAIMANT: I can hear, yeah.

COUNSEL: Okay.

MEMBER: Okay.

COUNSEL: It’ s just your video’ s frozen.

MEMBER: I’ll continue on.

COUNSEL: Yeah.

MEMBER: I’ll continue on, but if at some point you ‘re not able to hear or you cut out, please try to let us know.

CLAIMANT: Okay.

COUNSEL: If — if — if your audio cuts out, just come to the office where I am and then I’ll let the Member know.

CLAIMANT: Will do, yeah.

COUNSEL: Thank you.

[9]     MEMBER: Okay. The psychologist states that in his professional opinion, the claimant’s expression of their gender identity as transgender and non-binary is genuine; a letter of support from the claimant’s physician in Canada, which confirms that when taking their initial health history, the claimant identified themselves as a non-binary person and mentioned potentially being interested in gender affirming therapy; a letter of support from the claimant’s former academic advisor in the United States, which generally confirms the claimant’s allegations; a letter of support from a friend of the claimant and their spouse, who attests to the fact that he often drove XXXX to the United States to meet the claimant, and that he was present at their wedding; a letter of support from a friend of the claimant, which indicates that they came out as transgender in 2019, and which indicates that the claimant is a XXXX of a XXXX called XXXX XXXX, which provides support and advocacy to transgender and non-binary individuals; a letter of support from a co-worker and friend of the claimant which confirms that he and claimant have discussed their gender identity and fear of returning to Russia as a LGBTQ+ person; and, a letter of support from a close friend of the claimant in the United States, which generally confirms the claimant’s allegations.

[10]   The claimant also indicated that their spouse, XXXX, was available to act as a witness. I did not find it necessary to ask XXXX to testify, given the extensive documentary evidence submitted and the credible nature of the claimant’s testimony. I note that the claimant did not initiate a refugee claim in the United States even though they lived in that country for several years. They explained that this is because their spouse is Canadian and that they did not want to be separated from their spouse for the length of time it would take for their claim to be processed.

[11]   The claimant also explained that the political climate in the United States at the time was negative and hostile towards LGBTQ+ persons and that they were afraid of being detained in unsafe conditions, given their status as a gender non-conforming individual. I accept this explanation and do not find that it undermines the claimant’s credibility or subjective fear.

[12]   I note as well that the claimant has visited their mother in France and did not make a refugee claim there. The claimant explained that this was because they did not want to be separated from their Canadian spouse. I accept this explanation and do not find that it undermines the claimant’s credibility or subjective fear.

[13]   I find the claimant to be credible and I believe what they have alleged in support of their claim.

Nexus

[14]   The claimant alleges that they are at risk, due to both their gender identity and their perceived sexual orientation. I find that the persecution the claimant fears has a nexus to the Convention ground of particular social group; namely, transgendered individuals and individuals who are perceived to be LGBTQ+. I have, thus, assessed this claim under section 96 of the Act.

The Claimant’s Status in the United States

[15]   The claimant lived in the United States from 2012 until 2019, during which time they were enrolled in a graduate program at the University of Massachusetts. The claimant testified that they had a student visa and has provided a copy of a certificate of eligibility for non-immigrant student status, as well as various other documents confirming their immigration status.

[16]   The claimant testified that they became scared about the possibility of having to return to Russia when they graduated from their university program because they did not have permanent status in the United States, and that they explored the possibility of obtaining and employment visa; although this was ultimately unsuccessful.

[17]   I find that the clamant does not have status substantially similar to that of a national or access to such status in the United States, and is, therefore, not excluded pursuant to Article 1(e) of the refugee Convention. I note that the claimant’s father is an American citizen and has been living in the United States since approximately 1997, and that the claimant’s mother is a citizen of France and has been living there since approximately 2010.

[18]   The objective evidence in the National Documentation Packages for both countries indicates that the claimant, as an adult, does not have a right to citizenship of either country by a virtue of the parent-child relationship.

[19]   I, thus, find that neither the United States nor France is a country of reference in this claim.

Well-Founded Fear of Persecution

[20]   The claimant identifies as a non-binary transgender person. They testified that their earliest memories are of being gender non-conforming and recounted being bullied and harassed at school for presenting as too feminine. The claimant explained that they started the process of discovering their identity when they started college in Russia through exposure to the internet and Western sources.

[21]   The claimant testified about the process of discovering their transgender identity and the role that their spouse, XXXX, played in that process. They reference the fact that they had experienced a lot of pressure to conform throughout their life and that XXXX was the first person who they could talk to about their gender identity and who supported their self-discovery.

[22]   The claimant testified about the risks they would face if they were to return to Russia. They indicated that transgender people who do not fit into gender norms are at risk of physical violence. They reference being aware of several cases where transgendered people have been killed or injured due to their gender identity. They also indicated that, in general, Russian society is very hostile to transgender people and that their family in Russia would not be accepting of their identity.

[23]   The objective evidence demonstrates that LGBTQI+ peoples, including those who are transgender and those who are perceived to be homosexual, face treatment in Russia that amounts to persecution. Although homosexuality has been decriminalised in Russia since 1993, in 2013, a law banning the promotion of “non­ traditional sexual relations” came into force.

[24]   Sources cited Item 6.1 of the National Documentation Package indicate that the law is frequently invoked to punish the exercise of free speech by LGBTQI+ persons and their supporters. The government uses a law to restrict any materials that directly or indirectly approve of persons who are non-traditional sexual relationships and to limit the rights of persons who advocate for LGBTQI+ rights or express the opinion that homosexuality is normal.

[25]   The United States Department of State Item 2.1 of the National Documentation Package identifies crimes involving violence or threats of violence against LGBTQI+ persons as one of the most significant human rights issues in Russia. There are reports of State actors committing violence against LGBTQI+ persons based on their sexual orientation or gender identity. There are also reports of government agents attacking, harassing, and threatening LGBTQI+ activists. Sources cited at Item 6.1 of the National Documentation Package further indicate that state controlled media engages in a “homophobic campaign”, which is directed against LGBTQI+ persons. Reports have identified a number of recurring themes and mainstream media coverage in Russia, including statements by public officials that portray LGBTQI+ identities as contradictory or Russian and Orthodox values and as a Western phenomenon imposed by Europe as part of an agenda to weaken and alienate Russia.

[26]   The UK Home Office at Item 6.4 of the National Documentation Package reports that politicians use transphobic hate speech, which encourages stigma and intolerance amongst the population. Sources indicate that LGBTQI+ persons in Russia face discrimination and are exposed to the threat of violence in their places of study or work when searching for housing and when attempting to access medical care. This is so, even if an individual is not officially out, but simply presents as gender non-conforming. According to one source cited at Item 6.1 of the National Documentation Package, “even if LGBT individuals are not officially out, it is enough for individuals to be suspected of being gay or lesbian for them to be the subject of verbal or physical abuse. Failing to adhere to established gender norms in dress or behaviour, being overly affectionate to someone of the same sex or living with someone of the same sex are tantamount to coming out and can thus result in the risks set out above.”

[27]   Sources indicate that medical practitioners limit or deny LGBTQI+ persons health services due to intolerance and prejudice. The Russian LGBT network representative cited at Item 2.1 of the National Documentation Package indicates that upon disclosing their sexual orientation or gender identity, LGBTQI+ individuals often encounter strong negative reactions and the presumption that they are mentally ill.

[28]   Sources cited at Item 2.1 of the National Documentation Package also indicate that transgender persons are uniquely vulnerable to discrimination. This is in part because transgender persons face difficulty updating their names and gender markers on government documents to reflect their gender identity and because the government has not established standard procedures, and many civil registry offices deny their requests. When documents fail to reflect their gender identity, transgender persons face harassment by law enforcement officers and discrimination in accessing health care, education, housing, transportation, and employment.

[29]   Moreover, the United States Department of State at Item 2.1 of the National Documentation Package, reports that the LGBTQI+ persons are particular targets of societal violence and that the police often fail to respond adequately to such incidents. For example, the Russian LGBT network reported that a transgender man was attacked while he was leaving a supermarket in the Kursk Region in April 2020. The assailant grabbed a man by the neck, beat him, and threatened to kill him. The man sustained serious injuries. Although he filed a report, the police did not investigate the incident and refused to open a criminal case.

[30]   There are numerous other similar examples of the failure of the authorities to respond when violence or credible threats of violence are made against LGBTQI+ persons, and these are cited in the National Documentation Package.

[31]   There are also reports that Item 2.1 of the National Documentation Package that the authorities have conducted involuntary physical exams of transgender persons, physically and sexual abuse transgender people, and subjected transgender individuals to detention, assault, harassment, and humiliating treatment. The UK Home Office reports at Item 6.4 of the National Documentation Package, that law enforcement personnel used violence and torture to extract confessions. As well, as is set out in the SOGIE guidelines, it is well-established in law that being compelled to conceal one’s gender identity or sexual orientation constitutes a serious interference with fundamental human rights, and a claimant cannot be expected to conceal their gender identity as a way to avoid persecution.

[32]   It is apparent that the claimant has engaged in a significant measure of behavioural self-censorship while living in Russia, they have been unable to live openly as a non-binary transgendered person in Russia. The objective evidence in the National Documentation Package is overwhelming regarding the persecution and ill-treatment of member of the LGBTQI+ community, which includes transgendered persons, such as the claimant. I find that the claimant would face a serious possibility of persecution by the government as Russia — of Russia, as well as from non-state actors, if they were to return to their country of nationality.

State Protection

[33]   I have considered whether adequate state protection is available to the claimant in Russia and conclude that it is not. A State is presumed capable of protecting its citizens to rebut this presumption, a claimant must establish on a balance of probabilities with clear and convincing evidence that their State’s protection is inadequate. In this case, I find it would be objectively unreasonable for the claimant to seek state protection in Russia because it is in part the State that the claimant fears due to its pattern of persecution and prosecution of sexual minorities.

[34]   Further, the objective evidence demonstrates that there is no government support for LGBTQI+ persons in Russia and that the law does not prohibit discrimination against LGBTQI+ persons in housing, employment, or access to government services such as health care.

[35]   I, thus, find on a balance of probabilities, that the State would be unwilling or unable to provide adequate protection to the claimant if they were returned to Russia. The presumption of state protection has been rebutted.

Internal Flight Alternative

[36]   I have also considered whether a viable Internal Flight Alternative exists for the claimant and find that it does not. The evidence before me indicates that transgendered persons are persecuted throughout Russia. I, thus, find that the claimant faces a serious possibility of persecution throughout the entire country. The claimant does not have an IFA.

CONCLUSION

[37]   For these reasons, I find that the claimant is a Convention refugee, and I accept their claim. All right. So that concludes my decision in your claim.

CLAIMANT: Thank you.

MEMBER: You — I want to thank you very much for participating in this hearing today, and I want to welcome you to Canada.

CLAIMANT: Thank you so much.

MEMBER: Yeah. Thanks as well to you, Counsel. So, what I’m going to do now, is I’ll stop the recording and then I will disconnect the proceedings.

COUNSEL: Thank you Madam Member.

———- REASONS CONCLUDED ———-

Citation: 2020 RLLR 65
Tribunal: Refugee Protection Division
Date of Decision: January 20, 2020
Panel: Jeffrey Brian Gullickson
Counsel for the Claimant(s): Jessica Lipes
Country: Russia
RPD Number: MB8-24684
Associated RPD Number(s): MB8-24749, MB9-08541
ATIP Number: A-2021-00800
ATIP Pages: 000038-000045

REASONS FOR DECISION

INTRODUCTION

[1]       The principal claimant, [XXX], her daughter, [XXX] and [XXX], are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. Their passports prove that they are citizens of Russia.

[2]       I have appointed [XXX] as designated representative for her minor child, [XXX].

[3]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (Guideline 4) and the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (Guideline 9).

ALLEGATIONS

[4]       The claimants all lived in [XXX], Russia. [XXX] and [XXX] are a lesbian common-law couple. [XXX] is [XXX] and lives with them.

[5]       The principal claimant was harassed and threatened with violence in her youth when she revealed that she was lesbian. She hid her sexual orientation for her safety. She was lonely and decided to have a child. She met a man who assisted her but he did not want to be an active parent to the child.

[6]       [XXX] was born in [XXX]. The principal claimant raised the child. The principal claimant’s mother helped a lot with raising the child.

[7]       The principal claimant met the co-claimant, [XXX], on an Internet dating site in 2014. They started living together in 2015.

[8]       The parents of other children suspected that principal claimant and [XXX] were lesbians and said that [XXX] was not to play with the other children because she was not normal. The two adult claimants became the subject of aggressive messages and vandalism for being lesbians.

[9]       The claimants all moved residence, but the insults from neighbours continued. The claimants moved again. The pattern of insults and threats continued when the adult claimants’ vehicles or other property was vandalized for the adult claimants’ lesbianism. The principal claimant feared for the safety and well-being of her daughter.

[10]     In 2017, after the adult claimants returned from a trip to Turkey, their landlord yelled and insulted [XXX] who was playing in the yard and later said to [XXX] that the claimants should be killed.

[11]     They moved again to a temporary residence while they attempted to obtain Canadian visas to leave Russia. The principal claimant and her daughter obtained the visas, but [XXX] was refused.

[12]     The principal claimant and [XXX] left Russia for Canada in [XXX] 2018 and then made a refugee claim.

[13]     [XXX] was the victim of a physical assault and other violence due to being lesbian in Russia. She obtained a US visa and left Russia in [XXX] 2019 and then came to Canada to make a refugee claim.

DETERMINATION

[14]     I find that adult claimants are “Convention refugees”. They established a serious possibility of persecution as members of a particular social group (lesbians – sexual orientation).

[15]     I find that for the child claimant, it has not been established that there is a serious possibility of persecution on a Convention ground, or that, on a balance of probabilities, that the child claimant would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to her country.

ANALYSIS

[16]     The determinative issues in this case are credibility and the alleged risk of harm to the child claimant not amounting to persecution.

Credibility

[17]     The adult claimants were credible witnesses regarding their personal circumstances as adult lesbians. Their testimony and other evidence support their claim regarding the risk of future persecution in Russia.

[18]     There were inconsistencies in testimony and the other evidence regarding how the child claimant was treated in Russia and how she would be treated in Russia on her return to Russia. These inconsistencies or credibility issues were not adequately explained and the Guidelines 4 and 9 regarding trauma or shame related to crimes against or mistreatment of women or sexual minorities do not adequately explain the inconsistencies or credibility issues regarding the child claimant.

[19]     When asked what would happen to her daughter upon return to Russia, the principal claimant testified in the hearing that it would be difficult for her because she has been out of school and lose up to two years – she would double. Later in the hearing, when asked what would happen to her (the principal claimant) upon her own return to Russia, she responded that her daughter now knows in Canada that the adult claimants are in a lesbian relationship and they explained that it is not bad or shameful.

[20]     Later again in the hearing, the claimants’ own counsel asked what the principal claimant’s concerns were for her daughter, the principal claimant responded that she was concerned that her daughter would be humiliated as the child of a lesbian and be treated as not normal. Asked by her counsel if all the principal claimant was worried about was name calling, the principal claimant responded that she did not know what would happen to her daughter, what impact that there would be directly or if she would be beaten, but that people are wicked and kids are mean.

[21]     Later again, the principal claimant testified that her daughter, who now knows about the sexual orientation of her mother would not be able to keep silent about the principal claimant’s sexual orientation and therefore would expose herself to insults and humiliation.

[22]     Asked why she would not have mentioned this possible harm to [XXX] when first asked in the hearing about what would happen to [XXX] upon her return to Russia. She responded that she did not understand the extent of the question the first time.

[23]     The principal claimant’s testimony on behalf of her daughter has not shown that the daughter would likely reveal to others in Russia that her mother is a lesbian. Her testimony was vague and varying on the subject of what would happen to her daughter upon return to Russia, mostly responded that she does not know what would happen to her daughter. Consequently, I draw a negative inference regarding the principal claimant’s allegation that her daughter would face a serious harm in Russia, if the daughter returned there.

[24]     While the principal claimant mentioned that her landlord had said to [XXX] that he wished the claimants, including the child, dead, I interpret this not be a threat of death to the child, but rather a hateful statement. The claimants have not submitted probative evidence that the child would likely face an aggression of violence, based on past events or based on the particular circumstances of the child looking forward, if she were to return to Russia alone.

[25]     The principal claimant testified that her own mother was an important caregiver to the child claimant, including during the adult claimants’ trip to Turkey in 2018. I note that according to the Canadian visa application (document #6), that the principal claimant testified was true and correct, except for the mention of a male friend as being her common-law spouse, that the child’s maternal grandmother lived in the same city as the claimants. The principal claimant testified her own mother is a teacher on pension but still teaches violin and that if the child claimant was alone in Russia, this grandmother, would take care of the child.

[26]     Asked if there would be any problem if her mother took care of the child claimant, the principal claimant responded that the child should live with her (the principal claimant, the child’s mother).

[27]     The claimants have not shown with probative evidence that the child’s grandmother could not continue to care for the child claimant, if she were to return to Russia.

[28]     The National Documentation Packages for Russia (NDP), dated 29 March 2019, indicates that while homosexuality has been decriminalized, there is still serious discrimination against gay and lesbian people in law (anti-propaganda law) and custom, where there are reports of violent crimes against LGBT persons with inadequate state protection (NDP, tab 6.1). The NDP mentions that in Russia’s Chechen Republic, families of gay persons were shamed and insulted official as being responsible for homosexuality (NDP, tab 6.5, p. 27), but there is not a report of such treatment of families in the rest of Russia. However, given the above-described social atmosphere in Russia against sexual minorities, it would not be implausible that such treatment occurred elsewhere in Russia.

[29]     The claimants’ own submitted evidence (E-9 to E-20) on the treatment of sexual minorities in Russia is not probative evidence showing that the family members, and in particular, children, are exposed to serious harm due to their association to homosexual members of their families. In particular, E-16 describes how LGBT parents in same-sex relations feared the removal of their children by social services in Russia, but that no legal mechanism for such an action currently exists in Russia. Most of the articles and reports (E-9 to E-20) refer to discrimination, threats and violence to openly LGBT persons and forced silence of these persons to avoid that trouble.

[30]     The claimants have not submitted sufficient probative evidence that the child claimant understands the lesbian relationship of her mother, that the child claimant would discuss it openly in Russia or would be exposed to a serious danger there.

[31]     Furthermore, if the child claimant did understand the lesbian relationship of her mother and the child felt compelled to keep this information secret for her own protection, this would not be a hardship amounting to persecution for a refugee ground or a cruel and unusual treatment or punishment.

Risk of harm

[32]     To be considered persecution, the prospective risk of harm must be sufficiently serious, either individually or cumulatively, to constitute persecution or a risk to life or cruel and unusual treatment or punishment. Risks the child claimant may face in Russia, I do not consider that this would amount to persecution, even if taken cumulatively, for the reasons already stated above.

[33]     Due to the insufficiency of evidence regarding a future danger or harm for the child claimant in Russia, State protection and internal flight alternative (IFA) are not directly relevant to the child claimant in her particular circumstances. Since the child claimant has already been in the care of the grandmother or resided with the grandmother who resides in the same city where the claimants last resided in Russia, I do not consider living with this grandmother to be an IFA for the child claimant.

[34]     Whether the principal claimant, if accepted as a refugee in Canada, would make a successful application for permanent residence in Canada and include the child claimant in that application, therefore precluding the forced return of the child to Russia, is beyond the scope of the present refugee decision.

State protection

[35]     I find that there is clear and convincing evidence before me that the state (Russia) is unable or unwilling to provide the adult claimants with adequate protection, for the reasons already mentioned.

Internal flight alternative

[36]     On the evidence before me, I find that there is a serious possibility of persecution throughout Russia for the adult claimants, for the reasons already mentioned.

CONCLUSION

[37]     The adult claimants are “Convention refugees”. I accept their claims.

[38]     The child claimant is not a “Convention refugee” under section 96 of IRPA or a person in need of protection within the meaning of section 97 (1)(a) or (b) of IRPA. Her claim is rejected.

Citation: 2019 RLLR 123
Tribunal: Refugee Protection Division
Date of Decision: April 26, 2019
Panel: Z. Kaderali
Counsel for the Claimant(s): Stephen B Watt
Country: Russia
RPD Number: TB7-20928
ATIP Number: A-2021-00256
ATIP Pages: 000030-000033

REASONS FOR DECISION

[1]       The claimant, [XXX], is a citizen of Russia. He claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)¹.

ALLEGATIONS

[2]       The details of the alleged circumstances are found in the claimant’s Basis of Claim (BOC) form and updated narrative.² The claimant is a 33 year old male, and a citizen of Russia. He indicates that he fears return to Russia on the grounds of his sexual orientation. He indicates that he met his partner in March 2015, and they were married in Canada in December 2017. The claimant advises that he made an asylum claim in the United States in June 2016, and came to Canada on [XXX] 2017.

DETERMINATION

[3]       The panel finds the claimant is a Convention refugee pursuant to section 96 of the IRPA, on the grounds of his sexual orientation. In coming to this determination, the panel has considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.³

ANALYSIS

Identity

[4]       The claimant’s identity has been established through a copy of his passport found in Exhibit 1.⁴ The panel is satisfied, on a balance of probabilities, that the claimant is who he says he is, and is a citizen of Russia.

Credibility & well-founded fear

[5]       Assessed in totality, the panel found the claimant to be a credible witness who testified in a straightforward manner. Looking at the totality of the evidence the panel finds there is sufficient credible and trustworthy evidence establishing that the claimant is a gay man, on a balance of probabilities. In coming to this determination, the panel has considered the following. As the Court explained in Maldonado, the sworn testimony of the claimant is presumed to be true unless a valid reason exists to doubt its truthfulness.⁵ He testified to his relationship with his spouse, who also attended the hearing, and provided testimony. Several corroborative documents are found in Exhibits 6 and 7 including (but not limited to) a letter from the claimant’s spouse, the claimant’s US asylum application, and his marriage license.⁶ The panel has further reviewed the US biometrics which were returned with “no match”.⁷ In light of the documentation before the panel including the claimant’s US asylum application, the panel places little weight on the biometrics. The panel has reviewed the two letters from the claimant’s US counsel indicating his written request made by his US counsel on his behalf to withdraw his US asylum application⁸. The panel finds, on a balance of probabilities, that the claimant currently does not have permanent residence in the United States, and that exclusion under article 1E of the United Nations Convention Relating to the Status of Refugees (article lE) is not an issue in these particular circumstances.

[6]       Objectively, as indicated in item 2.1 of the National Documentation Package (NDP) for Russia, “[o]penly gay men were particular targets of societal violence, and police often failed to respond adequately to such incidents.” Further, “LGBTI persons reported significant societal stigma and discrimination, which some attributed to official promotion of intolerance and homophobia.”⁹ The panel finds there is a serious possibility of persecution should the claimant return to Russia.

State protection and internal flight alternative

[7]       The panel finds state protection would not be reasonably forthcoming in the claimant’s circumstances. As indicated in item 6.1 of the NDP, sources indicate that “police officers are not trained on LGBT issues and “most of them have the same stereotypes about LGBT people as the majority of the Russian citizens” (23 Oct. 2013). Further, as indicated in item 6.7 of the NDP, “[d]iscrimination against the LGBT community in Russia is widespread and severe, including by the authorities.”¹⁰ The panel finds that there is not a viable internal flight alternative, and that these conditions exist throughout Russia.

CONCLUSION

[8]       The panel concludes that the claimant is a Convention refugee and accepts his claim.

(signed)           Z. Kaderali

April 26, 2019

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96, 97(1)(a) and 97(1)(b).
² Exhibit 2, Basis of Claim Form (BOC) TB7-20928; Exhibit 4, Narrative (45 paragraphs).
³ Chairperson’s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. Effective May 1, 2017.
⁴ Exhibit 1, Package of Information from the referring CBSA/CIC.
⁵ Maldonado v. Canada (Minister of Employment and Immigration), (1980)] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
⁶ Exhibit 6, Claimant’s Documentary Disclosure; Exhibit 7, Marriage certificate.
⁷ Exhibit 5, US Biometrics no match.
⁸ Exhibit 8, Letters from US counsel (added post-hearing).
⁹ Exhibit 3, National Documentation Package (NDP) for Russia – January 31, 2019 Version.
¹⁰ Ibid., item 6.1 and 6.7.