Categories
All Countries Ukraine

2021 RLLR 35

Citation: 2021 RLLR 35
Tribunal: Refugee Protection Division
Date of Decision: March 16, 2021
Panel: Jessica Norman
Counsel for the Claimant(s): El-Farouk Khaki
Country: Ukraine
RPD Number: TB9-07374
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000173-000180

REASONS FOR DECISION

INTRODUCTION

[1]     These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, legally known as XXXX XXXX, who alleges that they are a citizen of Ukraine, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA“).

[2]     This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the IRPA.

ALLEGATIONS

[3]     The details of the claimant’ s allegations are fully set out in their Basis of Claim form and narrative, dated XXXX XXXX XXXX 2019.1 To summarize, the claimant alleges that they fear persecution at the hands of the Ukrainian police and Ukrainian society, including far-right nationalist groups, due to their sexual orientation and gender identity as a bisexual, non-binary, transgender person.

DETERMINATION

[4]     For the following reasons, the panel determines that the claimant is a Convention refugee pursuant to section 96 of the IRPA, because they face a serious possibility of persecution in Ukraine.

ANALYSIS

Identity

[5]     The panel finds that the claimant’s identity as a Ukrainian citizen is established, on a balance of probabilities, by a certified copy of their genuine Ukrainian passport.2

Nexus

[6]     The panel finds that there is a link between the claimant’s fear and the Convention refugee definition – namely, membership in a particular social group as a queer, non-binary, transgender person. Accordingly, the panel has assessed their claim pursuant to section 96 of the IRPA.

Credibility

[7]     The claimant’s narrative includes a detailed description of growing up in a repressive and abusive environment, where they were abused by their parents, bullied, and physically and sexually assaulted, including by their classmates, for not conforming to gender norms. The claimant also gives a detailed description of how they came to understand their own sexual orientation and gender identity after coming to Canada. The claimant’s BOC form and narrative are internally consistent, and entirely consistent with the other forms they completed upon initiating their refugee claim.

[8]     The claimant submitted relevant and probative documentary evidence corroborating their allegations.3 That evidence includes a copy of their birth certificate; copies of detailed social media posts expressing their sexual orientation and gender identity; detailed letters of support, including from the claimant’s partners and other friends described in their narrative; documents showing that the claimant attended the 519 “Among Friends” program well before initiating a refugee claim; photos of the claimant with partners and friends, including at Pride events; and a letter from the claimant’s XXXX corroborating their XXXX health issues.

[9]     The claimant’s documentary evidence is consistent, in content and chronology, with their basis of claim form and narrative and with the other evidence in their claim.

[10]   The panel believes what the claimant has alleged and finds that they have established on a balance of probabilities that they are a queer, non-binary, transgender person.

Subjective Fear

[11]   The panel notes that the claimant arrived in Canada in 2013 but did not file a refugee claim until XXXX 2019, at which point they had been out of status since XXXX 2017.4 The panel considered whether this gives rise to a negative inference as to their subjective fear of returning to Ukraine.

[12]   The claimant explained that prior to leaving Ukraine to attend university in Toronto in 2013, they were unaware of their sexual orientation and gender identity. It was only after becoming part of a community of transgender, non-binary and other queer persons that they began to explore this aspect of their identity. They began to identify as, and publicly came out as, a non-binary transgender person in XXXX 2016, at which point they changed their chosen name from XXXX to XXXX XXXX XXXX. The claimant has not returned to Ukraine since that time.

[13]   The claimant also explained that although they learned of the existence of the refugee claim system in XXXX 2017 after visiting the 519, their poor XXXX health and homelessness made it difficult to make decisions and seek information about anything outside day-to-day survival.

[14]   The claimant explained that in XXXX 2018, they were finally able to access healthcare for the first time since the expiry of their previous health insurance, and that after receiving XXXX health treatment they began working with a lawyer to prepare a refugee claim in XXXX 2018. However, after an exploitative employment situation, followed by the loss of their job, their XXXX health again worsened, and they were unable to continue. The claimant alleged that it was only after their partner reached out to their current counsel in XXXX 2018, and learned of the existence of legal aid, that the claimant felt able to continue working on their claim.

[15]   The claimant submitted evidence corroborating that they had begun working with a lawyer in XXXX 2018,5 as well as evidence corroborating their XXXX health challenges.6

[16]   The panel finds that the claimant has provided a reasonable explanation of how their poverty, homelessness and XXXX health issues led to their delay in filing a refugee claim. Accordingly, the panel does not draw a negative credibility inference, and finds that the claimant has established that they fear returning to Ukraine.

Objective basis

[17]   The panel finds that the claimant’s fear of persecution in Ukraine as a queer, non-binary, transgender person is objectively well founded, and that going forward the claimant faces a serious possibility of persecution. In reaching this conclusion, the panel considered the documents in the National Documentation Package (NDP) for Ukraine dated June 30, 2020,7 as well as the country condition evidence submitted by counsel.8

[18]   Despite the fact that consensual same sex activity was decriminalised in Ukraine in 1991, the objective evidence suggests that “LGBTI people are by and large forced to hide their identities as a result of stigma”.9

[19]   Transgender persons additionally face unique challenges. They reported “difficulties obtaining official documents reflecting their gender identity, which resulted in discrimination in health care, education, and other areas.”10

[20]   There have been some minor improvements in state policy towards transgender persons. For instance, transgender individuals are no longer required to “undergo sex reassignment surgery to change their names and genders officially”. However, they are still required to receive “counseling and hormone therapy” to do so. Moreover, regulations “still prevent reassignment for married individuals and those with minor children.” Furthermore, “transsexuality” is still classified as a psychiatric disorder, and those individuals who do wish to have reassignment surgery “must spend 30 days in a psychiatric hospital amongst the mentally ill before this is considered”.11 A person with a diagnosis of “transsexualism” is “legally prohibited to be a guardian of a child.”12 Until very recently, forced sterilization was required as a part of the legal procedure for gender recognition.13

[21]   Societal violence against LGBTI persons in Ukraine continues to be prevalent and was “often perpetrated by members of violent radical groups.”14 Authorities reportedly “often did not adequately investigate these cases or hold perpetrators to account.”15 Attacks against members of the LGBTI community “were rarely classified under criminal provisions pertaining to hate crimes, which carried heavier penalties.”16 Moreover, such crimes and discrimination are considered underreported.17

[22]   Far-right nationalists and other radical groups “consistently tried to disrupt LGBTI events with violence or threats of violence.”18 For instance, at a “Trans March” held on Transgender Day of Remembrance in Kyiv, the eighty people marching were attacked by extremists from the “Tradition and Order” far-right group. While six attackers were detained by the police, they were only charged with “petty hooliganism”.19 Similarly, police intervened and detained members of the radical groups who attacked participants at the European Lesbian Conference in Kyiv with tear gas. However, the “attackers were subsequently released, and no charges were filed.”20

[23]   In summary, the panel finds that the objective evidence strongly corroborates that the claimant faces a serious possibility of persecution in Ukraine on the basis of their sexual orientation and gender identity.

State Protection

[24]   There is a presumption that States are capable of protecting their own citizens. However, a claimant can rebut the presumption of State protection, and demonstrate that such protection would not be provided, with clear and convincing evidence of the unwillingness or inability of the State to protect them.21

[25]   The objective evidence described above details the inadequate response by police to violence and other abusive behaviour against the LGBTI community. A 2020 report from the “LGBT Human Rights Nash Mir Center” summed up the situation as such: “Hate crimes against LGBT people are investigated ineffectively, offenders often avoid responsibility, and the motives of intolerance on grounds of sexual orientation or gender identity are ignored.”22

[26]   In addition to the incidents and patterns already described, there are also reports of police violence against members of the LGBTI community, and instances of the police luring members of the community through online ads and then extorting them for money.23 Moreover, police reportedly “used laws on human trafficking or prostitution as a pretext to target LGBTI persons”, including in a raid on a gay nightclub in Dnipro in April 2018.

[27]   With respect to police protection for Pride and other marches, a report by Freedom House states that “when police do provide protection, they often only protect the assembly itself, allowing participants to be attacked before and after the event.”24

[28]   Having considered all the evidence, the panel finds that the presumption of State protection has been rebutted.

Internal flight alternative

[29]   The panel considered whether a viable internal flight alternative exists for the claimant. Given the objective evidence already cited above, which confirms that the State and its agents are often among the agents of persecution, whether directly or indirectly, the panel finds that the claimant does not have an internal flight alternative. There is nowhere in Ukraine that they could safely live openly as a queer, non-binary, transgender person.

CONCLUSION

[30]   Having considered all the evidence, the panel finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA, as they face a serious possibility of persecution in Ukraine on the basis of their sexual orientation and their gender identity and expression. Their claim is therefore accepted.

(signed) Jessica Norman

16 March 2021

1 Exhibit 2.

2 Exhibit 1.

3 Exhibit 4.

4 Exhibit 2.

5 Exhibit 4.

6 Ibid.

7 Exhibit 3, National Documentation Package for Ukraine (June 30, 2020) [Ukraine NDP].

8 Exhibit 5.

9 Exhibit 3, Ukraine NDP, Item 2.9, “Hate crimes and incidents in Ukraine.” LGBT Human Rights Nash Mir Center. See also Item 6.1, “Ukraine. Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe.” International Lesbian, Gay, Bisexual, Trans and Intersex Association. ILGA-Europe [Item 6.1]; and Item 6.2, “The Face of Hatred: Crimes and incidents motivated by homophobia and transphobia in Ukraine in 2014-2017.” LGBT Human Rights Nash Mir Center [Item 6.2].

10 Exhibit 3, Ukraine NDP, Item 2.1, “Ukraine. Country Reports on Human Rights Practices for 2019.” United States. Department of State [Item 2.1].

11 Exhibit 3, Ukraine NDP, Item 1.13, “Country Policy and Information Note. Ukraine: Sexual orientation and gender identity. Version 2.0.” United Kingdom. Home Office [Item 1.13].

12 Ibid.

13 Ibid.

14 Exhibit 3, Ukraine NDP, Item 2.1.

15 Ibid.

16 Ibid.

17 Ibid.

18 Ibid.

19 Exhibit 3, Ukraine NDP, Item 6.1.

20 Exhibit 3, Ukraine NDP, Item 2.1.

21 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689.

22 Exhibit 3, Ukraine NDP, Item 6.3, “Old problems, new prospects LGBT situation in Ukraine in 2019.” LGBT Human Rights Nash Mir Center.

23 Exhibit 3, Ukraine NDP, Item 6.2.

24 Exhibit 3, Ukraine NDP, Item 2.3, “Ukraine. Freedom in the World 2020.” Freedom House.

Categories
All Countries Ukraine

2020 RLLR 69

Citation: 2020 RLLR 69
Tribunal: Refugee Protection Division
Date of Decision: October 7, 2020
Panel: Atam Uppal
Counsel for the Claimant(s): Patricia Ritter
Country: Ukraine
RPD Number: TB7-22915
Associated RPD Number(s): TB7-22971
ATIP Number: A-2021-00800
ATIP Pages: 000063-000068

REASONS FOR DECISION

[1]       [XXX] and her minor son [XXX] are claiming to be citizens of the Ukraine and are claiming refugee protection pursuant to Sections 96 and 97 (1) of the Immigration and Refugee Protection Act(IRPA).[1]

PROCEDURAL

[2]       [XXX] was appointed as the designated representative for the minor claimant, [XXX], a Roma activist appeared as a witness for the claimants.

[3]       This hearing took place via video conference using Microsoft Teams after the parties consented to proceed. I did not have the opportunity to review the original identity documents. I note however, that Canadian officials who have access to your original documents[2] and have not raised any concerns about your identity. Therefore, I find, on a balance of probabilities, that you are both nationals of the Ukraine.

[4]       I have considered your testimony, the testimony of the witness [XXX] who founded the [XXX] in 1977, country conditions documents provided by your counsel[3] and National Documentation Package (NDP) for the Ukraine.[4] I find that the you have established that there is a serious risk of persecution due to your ethnicity that being Roma, should you and your son return to the Ukraine today.

ALLEGATIONS

[5]       Here is a short summary of the allegations;

[6]       That you are a Roma of Servitka clan. You and your family were always victims of harassment and discrimination in the Ukraine. You describe a lifetime of discrimination living in the Ukraine as Roma.

[7]       You state that since the 2014 Revolution, things have become much worse for the Roma and the Roma are being becoming victims of serious persecution.

[8]       You faced illegal searches at your home by undercover Ukrainian police. The police illegally searched your house and took any valuables they found. If you objected or complained, you were arrested and physically abused.

[9]       You cite several such events when you were abused, thrown off train because you were easily recognized as a Roma wearing your traditional garments. Your minor son was also a victim of abuse at his school by both the students and teachers alike.

[10]     You arrived in Canada in [XXX] 2017 with the minor and your husband. Your husband left you and you are not aware of his whereabouts. Your claim was referred to the Board in [XXX] 2017.

[11]     You fear returning to the Ukraine today because you believe that discrimination and persecution for the Roma in the Ukraine is being encouraged by politicians and that the police is also the agent of persecution.

DETERMINATION

[12]     For the reasons that follow, I find that the claimants would face a serious possibility of persecution on a Convention ground and, on a balance of probabilities, 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 their return to the Ukraine, today.

Therefore, I find that the claimants are Convention refugee and that they do have a well-founded fear of persecution or harm should they return to the Ukraine.

ANALYSIS

Identities

[13]     In all refugee claims, the first thing a decision maker must decide is identity. I find that your identity as a citizen of the Ukraine is established by your testimony and copies of your passports in Exhibit 1. I did not have the opportunity to see your original passports but note that officials who have seen your originals, have not raised any concerns.

[14]     Your identity as Roma was established your testimony supported by your witness [XXX]. You were able to speak in Romani language and testified that you taught Romani to your son as well. In addition, I have two documents from the Roma Community Centre[5] in Toronto in support of your identity as a Roma.

[15]     Next, I considered credibility and find you to be a credible witness. Your testimony is consistent with your narrative. I note that you did not attempt to embellish your claim. Your story is believable and supported by objective documentary evidence.

[16]     Documentary evidence indicates that Roma in the Ukraine continue to face societal and institutional discrimination, and that Roma are denied basic human dignity. They experience significant barriers to education, housing, healthcare, social service, and employment.

[17]     Roma are reported to be the most discriminated against ethnic group in the Ukraine, Item

13.1 in the NDP states “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.”[6]

[18]     Item 2.1 gives example of police failing to protect victims from harassment or violence from a group of violent nationalists from the National Druzhina organization – established with support from the National Corps. They attacked and destroyed a Romani camp in Kyiv after its residents failed to respond to their ultimatum to leave the area within 24 hours. Police were present but made no arrests, and they were recorded making casual conversation with the nationalists following the attack. This was not an isolated event, as there were numerous reports of societal violence against Roma during the year, often perpetrated by known members of violent nationalist hate groups. This report adds that Roma continued to face governmental and societal discrimination.

[19]     Item 13.7 in the NDP states that “discrimination against Roma is at every level of society, including among police, prosecutors, and officials.”[7] This report adds that “throughout 2018, in the absence of any official protection, temporary settlements of Roma in Kyiv and Lviv became an easy target for right-wing violence … attacks on settlements have frequently been preceded by anti-Roma hate speech in the media or opportunistic statements from politicians.[8]

[20]     Justice La Forest in a landmark decision, Ward, in 1993 endorsed the concept of persecution as meaning “sustained or systematic violation of basic human rights demonstrative of a failure of state protection.”[9] That appears to be the case here. In your case the cumulatively impact of life long discrimination and humiliation amounts to persecution.

More importantly, I find that if you were to return to the Ukraine today, there is a serious chance that you will continue to face discrimination and persecution.

INTERNAL FLIGHT ALTERNATIVE and STATE PROTECTION

[21]     Documentary evidence shows that the state agents are complicit in acts of discrimination and persecution, and police stand by and do not intervene to stop violence, against Roma. Moreover, police enter your homes illegally and rob you of your possessions. Unlawful acts by the police even if reported go unpunished. Therefore, I find that you have rebutted the presumption of state protection in your particular circumstances. I also find, on a balance of probabilities, that there is no internal flight alternative available for you in the Ukraine.

CONCLUSION

[22]     Having considered all of the evidence, I find that there is a serious possibility of persecution should you return to the Ukraine today due to your ethnicity as Roma.

[23]     Therefore, I find you to be Convention refugees and accept your claims.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).

[2] Exhibit 1, Package of information from the referring CBSA/CIC.

[3] Exhibit 6, Counsel Disclosure, received September 22, 2020; Exhibit 7, Country Conditions and Claimants’ Personal Disclosure, received September 22, 2020.

[4] Exhibit 3, National Document Package (NDP) for Ukraine (June 30, 2020).

[5] Exhibit 7, Country Conditions and Claimants’ Personal Disclosure.

[6] Exhibit 4, NDP for Ukraine (June 30, 2020), item 13.1, s. 2.2.

[7] Ibid., item 13.7, s. Key Findings

[8] Ibid., s. Livehood

[9] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

Categories
All Countries Ukraine

2019 RLLR 143

Citation: 2019 RLLR 143
Tribunal: Refugee Protection Division
Date of Decision: October 9, 2019
Panel: Charlotte Bell
Counsel for the Claimant(s): Lev Abramovich 
Country: Ukraine
RPD Number: TB9-03821
Associated RPD Number(s): TB9-03897
ATIP Number: A-2021-00256
ATIP Pages: 0000140-000150


REASONS FOR DECISION

[1]       [XXX] is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (hereafter “the Act” )1 by reason of his membership in a particular social group, namely civil rights activists. The [XXX] cause is gay rights activism in Ukraine.

[2]       [XXX], his son, is claiming refugee protection pursuant to sections 96 and 97(1) of the Act by reason of his membership in a particular social group; namely, he identifies as gay.

[3]       In reaching a decision, the panel has considered Chairperson’s Guideline 92 in relation to proceedings before the Immigration and Refugee Board of Canada involving sexual orientation and gender identity and expression.

ALLEGATIONS

[4]       The claimants’ allegations are set out fully in their Basis of Claim (BOC) forms.3

[5]       In summary, [XXX] is a citizen of Ukraine who fears persecution based on his sexual orientation, specifically as a gay male

[6]       [XXX] is the father of the [XXX], and a civil rights activist working for gay rights in Ukraine. He fears persecution by reason of his civil rights activism.

[7]       Both father and son have suffered physical violence, threats, and police indifference in Ukraine by reason of their membership in their particular social group.

DETERMINATION

[8]       The panel finds that the claimants have established a serious possibility of persecution in Ukraine based on a Convention ground; namely, membership in a particular social group.

ANALYSIS

Identity

[9]       The panel is satisfied, on a balance of probabilities, as to [XXX] and [XXX] personal identity and identity as nationals of Ukraine, based on the certified true copies of their Ukrainian passports in evidence.4

Credibility and Subjective Fear

[XXX]

[10]     The panel questioned [XXX] first about the allegations set out in his BOC. The panel finds that the claimant was, on the balance, a credible witness. His testimony was consistent with the allegations set out in his BOC. He described his association with and the friends he had in the LGBT community, specifically those he had met at GenderZ. He discussed the activities and demonstrations that he had participated in there. He described his relationship with [XXX], how they met and started dating in March 2018, how they located the apartment in which they eventually moved into together. He also described beatings he had undergone, and produced medical reports supporting his injuries.

[11]     One two occasions when [XXX] was attacked, the incident was reported to the police. In one attack, the police threatened to turn the accusation back on to [XXX], as his attacker claimed to be a victim who had counterattacked. In another incident the police pressured witnesses and kept them from giving statements confirming the attack.

[12]     [XXX] was clear and cogent in his testimony that he would not feel safe in any part of Ukraine, and that police protection was not available to him or his father.

[13]     [XXX] testimony supported his father’s claim. He described his father’s activism on behalf of the gay community in Ukraine. He recalled and gave the example of an incident he witnessed in which people active in fighting for gay rights were attacked; they were his friends and the police did not want to accept their statement as to what had happened to them “due to hate.” He feared for his father’s safety in Ukraine as his father was known as an activist fighting for gay rights.

[XXX]

[14]     The panel also questioned [XXX]. The panel finds that the claimant was, on the balance, a credible witness. His testimony was consistent with the allegations set out in his BOC. [XXX] confirmed that his son is gay, and described how he and his son had discussed the son’s sexual orientation from the early realization of it.

[15]     In his BOC [XXX] described his son’s struggle with being gay in Ukraine; the assaults which his son had suffered, the law firm he had retained to provide legal support for his efforts to advance protection for the gay community, the attack he himself had endured during a morning run when three men wearing uniforms beat him and tried to drag him into a minivan, the efforts he had made to seek protection and redress from the police, and the futility of these efforts.

[16]     Although he had applied for and been granted a temporary visitor’s visa into Canada in [XXX] 2018, for both himself and his son, [XXX] did not leave Ukraine until [XXX], 2018. The panel questioned [XXX] as to why he had waited so long if he indeed feared persecution both on his own account and that of his son.

[17]     [XXX] said that a child’s happiness comes first. His son had met a boy named [XXX] and loved him, and because the move to Canada, where they knew no one and would suffer considerable financial difficulties, would prove so difficult (it would not be possible for his wife and daughter to accompany them to Canada), he decided to stay and hope. He was concerned for his own safety but would not leave his son alone in Ukraine; and so they waited.

[18]     In November 2018, his son and [XXX] were attacked by a group of people who were insulting their sexual orientation. [XXX] ran away and this ended [XXX] relationship with [XXX]. [XXX] became involved in pressing for a police investigation only to discover that one of the attackers was the son of [XXX]., the First Deputy Public Prosecutor of the claimants’ home city.

[19]     [XXX] testified that [XXX] was a known criminal, is corrupt and takes bribes, and he produced media articles that support this assessment. [XXX]., seeking to disengage his own son from the allegations of assault, phoned and threatened [XXX]. [XXX] testified that not only does he fear returning to Ukraine by reason of the fact that he is a known gay rights activist, and gay rights activists are targeted in Ukraine, but also because [XXX]. would now have particular reason to harm him.

[20]     [XXX] described what he referred to as the special relationship that police and prosecutors have in Ukraine, and the reason why, in his view, the bias will not soon change. He said that it was not a long time ago that the Criminal Code of the Soviet Union made it a criminal offence to be gay; and that gay persons were prosecuted and sent to psychiatric hospitals for “treatment”. These laws, it was his observation, are still ingrained in Ukrainian society.

[21]     The panel has reviewed the articles that describe the corruption and violence surrounding the office of the Deputy Public Prosecutor and accepts that because of his involvement in the case in which the prosecutor’s son was implicated, [XXX] is at a heightened risk should he return to Ukraine.

[22]     Finally, the panel notes that the claimants provided documentary evidence in support of their claims, most notably pictures and letters from the LGBT community in Ukraine, police reports, and medical reports.5 The panel finds these documents to be relevant and probative in support of both of the claimants’ allegations.

[23]     In light of the testimony that the panel has found to be credible, and considering the documentary evidence, the panel finds, on a balance of probabilities, that the claimant [XXX] is gay, and that he experienced physical violence in Ukraine due to his sexual orientation.

[24]     The panel also finds, in light of the testimony that the panel has found to be credible, and considering the documentary evidence, that, on a balance of probabilities, [XXX] is a civil rights activist advocating for gay rights who experienced physical violence and threats in Ukraine due to this activism.

Objective basis of the claim

[XXX]

[25]     Having considered the country conditions documentation, the panel finds that there is an objective basis to what [XXX] fears in Ukraine.

[26]     The objective documentary evidence indicates that the LGBTQ community in Ukraine faces bias and hostility6 and that discrimination against the LGBTQ community in Ukraine takes place in almost every area of life.7 Discrimination is considered to be frequently encountered in employment, education, healthcare and treatment by law enforcement authorities. Violence against individuals in the LGBTQ community is noted to be a significant human rights issue in Ukraine.8 While Ukraine was the first former Soviet State to decriminalize same-sex activity, social intolerance is noted to have gradually increased since that time.9

[27]     Evidence in the National Documentation Package (NDP) for Ukraine suggests that violence against the LGBT community in Ukraine is on the rise:

Nash Mir’s monitoring network in 2018 documented 358 cases of actions motivated by homophobia / transphobia, discrimination and other violations of LGBT rights in Ukraine. 34 included events that happened in 2017, the rest- 324 cases – occurred in 2018. In comparison, previously in 2017 Nash Mir Center documented 226 cases. Such a sharp increase in the annual number of the reported LGBT rights violations, in our opinion, resulted from both increasing efficiency of the monitoring network activity and the real growth of violence against LGBT people by right-wing radical groups.10

[28]     In light of the objective documentary evidence the panel finds that [XXX] has a well-founded fear of persecution in Ukraine based on his profile as a gay man.

[XXX]

[29]     [XXX] provided documentary evidence to support his claim that gay activists were targeted in Ukraine.

[30]     An article published in February 8, 2018, in the Gay Alliance Ukraine reported an attack by five masked men shouting “Sieg Heil” and “Death to Faggots” on four activists who were members of the “Gay Alliance Ukraine” organization. As a result of the attack two of them were taken to the hospital.11 A July 2018 World report dated July 1 2018 described as severe beating by unidentified assailants of a gay activist who was organizing a gay pride parade in Kryvyi Rih.

[31]     The National Document Package, World Report 2019: Ukraine Human Rights Watch12 contains the following confirmation of Oleksandr’ s concerns for his safety as a human rights activist;

1. Authorities did not conduct effective investigations into numerous assaults against anti-corruption and other community activists. In November 2018, Kateryna Handzyuk, an anti-corruption activist, died from burn wounds inflicted in a July acid attack.

2. Members of groups advocating hate and discrimination carried out at least two dozen violent attacks, threats, or instances of intimidation against Roma people, LGBT people, and rights activists in several Ukrainian cities. In most cases, police failed to respond or effectively investigate.

In March, hate groups attacked events to promote women’s rights in Kyiv, Lviv, and Uzhgorod. In Kyiv, they physically assaulted participants while police looked on.

3. In May, hate groups disrupted an equality festival in Chernivtsi while local police failed to effectively protect participants. Also in May, hate groups in Kyiv disrupted an Amnesty International LGBT rights event in Kyiv. Police present took no action and made homophobic comments.

[32]     In light of the objective documentary evidence the panel finds that [XXX] has a well-founded fear of persecution in Ukraine based on his profile as a gay rights activist.

State Protection

[33]     The claimants bear the onus of establishing, with clear and convincing evidence, that adequate state protection would not be forthcoming to them, were they to return to Ukraine. Having considered all of the evidence, including circumstances particular to the claimants, the panel finds that they have met this burden.

[34]     It is reported in the objective documentary evidence that incidents of homophobic violence are rarely investigated or prosecuted by the authorities in Ukraine and that there is no effective hate crime legislation in place.13 Significant problems are noted in the objective evidence with respect to law enforcement treatment of same-sex activity. Failure by the police to intervene in order to prevent violence and other crimes is also noted to be a problem, and it is also noted that the police sometimes use violence against people on the basis of their sexual orientation.14 The current United States Department of State (USDOS) human rights report for Ukraine indicates that there was sporadic violence against LGBTQ persons and that Ukrainian authorities often did not adequately investigate these cases or hold perpetrators to account.15 Crimes and discrimination against LGBTQ persons is noted to remain underreported and police open very view cases related to such acts.16 Further, it is reported that politicians at the local level sometimes voice opposition to LGBTQ rights and failed to protect individuals of the LGBTQ community.17

[35]     In September 2017, [XXX] was attacked. The attack was homophobically motivated. He required medical attention. The traumatologist was obligated to report such incidents to the police and so on September 19th, 2017, the claimants were called into the District Department of Internal Affairs. The investigating officer made derogatory comments about [XXX] sexual orientation, and berated [XXX] for how “poorly” he had raised his son.

[36]     When by October 2017 [XXX] went to check on the progress of the case, he was told that there was no news, the police had important work to do, and [XXX] should not disturb them with unnecessary requests.

[37]     [XXX] retained a lawyer, and submitted a complaint to the prosecutor’s office. The investigator told [XXX] that he was being “very imprudent’ and that he “should be very careful”. The investigator suggested that [XXX] might have been the real aggressor and could be charged with the offence.

[38]     On the advice of a lawyer, after this, [XXX] decide to stop pursuing the case.

[39]     The panel finds, on a balance of probabilities, that adequate state protection would not be forthcoming to the claimants were they to return to Ukraine.

Internal Flight Alternative

[40]     Given that homophobic attitudes and incidents of violence against LGBTQ people are reported to occur throughout the country, the panel finds that the claimants would face a serious possibility of persecution wherever they went in Ukraine. The panel therefore finds that there would be no viable IFA for the claimants should they return there.

CONCLUSION

[41]     Having considered all of the evidence, the panel finds that the claimant [XXX] has established that he faces a serious possibility of persecution in Ukraine based on a Convention ground, namely his membership in a particular social group by virtue of being a gay man. Pursuant to section 96 of the Act, the panel finds that the claimant is a Convention refugee.

[42]     The panel also finds that the claimant [XXX] has established that he faces a serious possibility of persecution in Ukraine based on a Convention ground, namely his membership in a particular social group by virtue of being a civil rights activist for the LGBTQ community. Pursuant to section 96 of the Act, the panel finds that the claimant is a Convention refugee.

[43]     Accordingly, the panel accepts the claims of both [XXX] and [XXX].

(signed)           C. Bell

October 9, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
2 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. Effective date: 1 May 2017.
3 Exhibit 2.1 & 2.2
4 Exhibit 1.
5 Exhibit 6 and 7
6 National Documentation Package (NDP) for Ukraine (31 July 2018), item 2.3.
7 NDP for Ukraine (30 April 2018), item 2.11.
8 NDP for Ukraine (31 July 2018), item 2.1.
9 NDP for Ukraine (31 July 2018), item 2.1.
10 NDP Ukraine (Nash Mir Center) 6.3
11 Exhibit 5 no. 6
12 NDP 2.5
13 NDP for Ukraine (31 July 2018), item 2.3.
14 NDP for Ukraine (31 July 2018), item 2.3.
15 NDP for Ukraine (31 July 2018), item 2.1.
16 NDP for Ukraine (31 July 2018), item 2.1.
17 NDP for Ukraine (31 July 2018), item 2.1

Categories
All Countries Ukraine

2019 RLLR 139

Citation: 2019 RLLR 139
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2019
Panel: Roderick Flynn 
Counsel for the Claimant(s): Peter Neill
Country: Ukraine
RPD Number: TB8-28086
ATIP Number: A-2021-00256
ATIP Pages: 0000121-000123


[1]       MEMBER: I have considered the evidence in this case and I’m ready to render a decision orally.

[2]       The claimant, [XXX], is a citizen of Ukraine and is claiming refugee protection pursuant to s. 96 and s. 97 of the Immigration and Refugee Protection Act.

[3]       I have considered all the evidence and I find that you are a Convention refugee for the following reasons.

[4]       You have provided credible and consistent evidence that you are a bisexual man who has been persecuted in Ukraine, including a homophobic attack in December 2016, which led to a three day hospitalisation.

[5]       You have alleged that you a bisexual man who faces persecution because of your sexual orientation in Ukraine.

[6]       Your identity as a citizen of Ukraine has been established by the supporting documentation, including your passport and birth certificate.

[7]       I find you to be a credible witness and therefore I believe what you have alleged in support of your claim.

[8]       You have testified in a straightforward and there were no relevant inconsistencies in your testimony or contradictions in your testimony and other evidence before me.

[9]       I am satisfied that you are a bisexual man who faces persecution in your country of origin of Ukraine because of your bisexual orientation.

[10]     I find that State protection would not be reasonably forthcoming in your case. Objective country documentation as well as the objective documentation provided by your counsel shows persistent homophobia among citizens and police, with insufficient investigation and prosecution of reports of homophobic attacks and events, including your own, because of a persistent and widespread attitude of homophobia throughout the country. This attitude of persecution has resulted in multiple reports of harassment of gay and bisexual people throughout the country.

[11]     Therefore, I am satisfied that there would be no safe place for you to return to in Ukraine because of your sexual orientation.

[12]     I conclude, therefore, you are a convention refugee and I accept your claim.

DECISION CONCLUDED