Categories
All Countries Russia

2020 RLLR 65

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.

Categories
All Countries Russia

2019 RLLR 123

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.