Category: Ukraine

Citation: 2021 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: April 19, 2021
Panel: Josee Bouchard
Counsel for the Claimant(s): Diane B. Coulthard
Country: Ukraine
RPD Number: TB8-33288
Associated RPD Number(s): TB8-33313
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]       MEMBER: For the record, I am starting the decision now. This is the decision of the following claimants. The principal claimant, the first name is XXXX XXXX XXXX XXXX XXXX XXXX XXXX, the last name XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX file number TB8-33288, and her son, the minor claimant, the first name is XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX the last name is XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX file number TB8-33313. The claimants are claiming to be citizens of Ukraine and are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act. In preparing my decision, I have considered and applied the chairperson’s guidelines 9, proceedings before the Immigration and Refugee Board involving sexual orientation and gender identity and expression. The principal claimant was appointed to be the designated representative for the minor claimant, effective July 19th, 2019. I have considered the whole claimant’s testimony, and the other evidence in the case, and I am ready to render my decision orally.

[2]       I find that the claimants have established a serious possibility of persecution in Ukraine by virtue of their membership in a particular social group, namely, as a lesbian for the principal claimant, and because of his familial relationship with the principal claimant for the minor claimant. The specifics of the claims are set out in the principal claimant’s narrative and their Basis of Claim forms, and the amendments to the Basis of Claim forms, all filed as Exhibits 2.1, 2.2, and 2.3.

[3]       The claimants allege to be citizens of Ukraine. They fear persecution at the hands of the Ukrainian authorities and society at large because of the membership in a particular social group, namely, as a lesbian for the principal claimant, and for the minor claimant, because of his familial relationship with the principal claimant. The claimants allege that there is no state protection for them or an internal flight alternative.

[4]       The claimants’ personal and national identities, as citizens of Ukraine, have been established on the balance of probabilities, by the principal claimant‘s testimony, and the supporting documents filed as Exhibit 1, namely, their valid passports, issued by the government of Ukraine. I find that there is a link between what the claimants fear and the grounds under s. 96 of the Immigration and Refugee Protection Act, namely, membership in a particular social group. Therefore, the claims are assessed under s. 96 of the Immigration and Refugee Protection Act.

[5]       In terms of the principal claimant’s general credibility, I found her to be a credible witness, and I believe what she has alleged in her oral testimonies and the Basis of Claim forms. The principal claimant’s evidence was detailed and consistent, both internally and with her documentation. Throughout the hearing, the principal claimant was articulate, responsive, and forthright. The principal claimant was able to elaborate on her narrative and gave detailed explanations to the questions. The claims were well supported, and I noted no material inconsistencies or omissions, such that the presumption of truthfulness could be rebutted. The principal claimant has established on a balance of probabilities the following.

[6]       The principal claimant is a lesbian. This claim is supported by the principal claimant’s credible testimony, statements from same-sex partners and friends, a statement from the principal claimant’s sister, an applications to the 519 Community Centre for the lesbian, gay, bisexual, transgender community, or LGBT, and several photographs of the principal claimant with same-sex partners or former same-sex partners taken over the years at various locations at Canada and Ukraine, and these are all filed as Exhibits 7.1 and 7.2. When she was 22 years old, the principal claimant dated, and later married, a man. She had a child, the minor claimant, with this man. In December 2005, the principal claimant and her spouse divorced. Two years later, the principal claimant’s former spouse passed away. This is supported by the principal claimant’s credible testimony and narrative, and the minor claimant’s birth certificate, the record of marriage certificate, certificate of marriage dissolution, and the principal claimant’s former spouse’s certificate of death filed as Exhibits 1 and 4. Over the years, the principal claimant had several same-sex relationships in Ukraine and in Canada. While in Ukraine, the principal claimant kept her sexual orientation a secret for fear of persecution. The claim is supported by the principal claimant’s credible testimony and statements from same-sex partners and a friend, a statement from the principal claimant’s sister, and several photographs of the principal claimant with same-sex partners or former same-sex partners taken over the years at various locations. These documents are all filed as Exhibits 7.1 and 7.2.

[7]       In 2017 and 2018, the principal claimant spent her summers in Canada, to work on a XXXX. This claim is supported by the principal claimant’s credible testimony and her Canadian work permits filed as Exhibit 7.1. While in Canada, the principal claimants’ parents found out about her sexual orientation and were horrified. As a result, the principal claimant is no longer on speaking terms with her father and has a difficult relationship with her mother. Friends and family were also informed and began threatening and accusing the principal claimant. The principal claimant believes that her life and that of the minor claimant, who is the son of a single lesbian mother, are at risk in Ukraine. This claim is supported by the principal claimant’s credible testimony, and a statement from her sister, filed as Exhibit 7.1. There is no reason to cast any doubt on the veracity of the documentary evidence, and as such, I place great weight on these documents to support the claimant’s allegations and overall claim. I find that the claimant’s subjective fear is established by the principal claimant’s credible testimony and I believe what she has alleged on a balance of probabilities.

[8]       The objective country reports are consistent with the claimant’s evidence about the violence suffered by members of the LGBT community in Ukraine. The national documentation package, or NDP for Ukraine, dated June 30th, 2020, at Exhibit 3, Item 1.6, is an annual review of the human rights situation of lesbian, gay, bisexual, trans and intersex people in Ukraine governing the period of January to December 2019. It was issued by the international lesbian, gay, bisexual, trans and intersex association of Europe, or LGBTI. It notes that notwithstanding its national strategy on human rights and its relevant action plan for 2015 to 2020, and the sections referring to LGBTI rights, the government did not make progress on its implementation. In May, the UN independent expert on protection against violence and discrimination based on sexual orientation and gender identity carried out a country visit to Ukraine. The independent expert highlighted that legislation is adequate, but implementation is lacking, that LGBTI people are by and large forced to hide their identities as a result of stigma, and that attacks against public events are of serious concern.

[9]       Item 2.1 of Exhibit 3, the Ukraine 2019 human rights report from the United States Department of State, notes that significant human rights issues in 2018 included crimes involving violence or threat of violence targeting lesbian, gay, bisexual, transgender and intersex person. It further states that civil society groups remained concerned about the lack of accountability for crimes committed by radical groups in cases documented in 2018. During the year, members of such groups committed violent attacks on ethnic minorities, LGBTI persons, feminists, and other individuals they considered to be un-Ukrainian or anti-Ukrainian. The UN High Commissioner for Human Rights monitoring mission in Ukraine noted that the failure of police and prosecutors to prevent these acts of violence, properly classify them as hate crimes, and effectively investigate and prosecute them, created an environment of impunity and lack of justice for victims.

[10]     The same report adds that there was societal violence against the LGBTI community, often perpetrated by members of violent radical groups, and authorities often did not adequately investigate these cases, or hold perpetrators to account. The UN High Commission for Human Rights monitoring mission in Ukraine noted that attacks against members of the LGBTI community were rarely classified under criminal provisions pertaining to hate crimes. Crimes of discrimination against LGBTI persons remained under-reported. The NDP documents also notes serious concerns about families of LGBTI individuals, including those raised by LGBTI individuals such as the minor claimant. Exhibit 3 at Item 6.3 recommends the elimination of all provisions in the Ukrainian legislation that lead to discrimination on the grounds of sexual orientation and gender identity. In particular, it notes that prohibiting discrimination on the grounds of sexual orientation and gender identity should protect all families, in particular, same-sex family couples, and children raised by them. Item 6.4, at Exhibit 3, notes that while welcoming increasing efforts in many countries to protect the LGBT, the rights of the LGBTI people, 12 UN entities remain seriously concerned that around the world, millions of LGBTI individuals, or those perceived as LGBTI individuals, and their families, face widespread human rights violations. It is cause for alarm and action.

[11]     The claimants have also filed recent country condition articles to the reports about the persecution of the LGBTI community in Ukraine, and those are all entered as Exhibit 6. As the claimants have established a subjective fear, and an objective basis for that fear, I find that they have established a well-founded fear of persecution.

[12]     When making a refugee claim, a claimant must establish on a balance of probabilities that adequate state protection is not available. There is a presumption that state protection is available, and the onus is on the claimant to provide clear and convincing evidence to rebut such presumption. So, Item 6.3 of Exhibit 3 discusses the lack of the state protection for the LGBTI community in Ukraine. It states as follows: “Violence by right-wing radical groups remains a sore issue for Ukrainian LGBTI organizations and individual activists. The situation in this area has not undergone significant changes with the few previous years. Right-wing radical organizations do not reduce the rate of their homophobic aggression, and law enforcement agencies do not take steps to attractively address this problem. Most high-profile events, such as equality marches, are provided with sufficiently reliable protection from attacks by their aggressive proponents, but in other cases, the police usually act very passively. Hate crimes against LGBTI people are investigated ineffectively, offenders often avoid responsibility, and the motives of intolerance on the grounds of sexual orientation or gender identity are ignored.” I find that state protection would not be reasonably forthcoming for the claimants. In addition, one agent of persecution is the state, as the persecution they could face should they return to Ukraine is at the hands of the authorities. Accordingly, I find that there is no state protection available to the claimants.

[13]     I have also considered whether a viable internal flight alternative exists for the claimant. An agent of persecution is the Ukrainian government. The evidence reviewed above confirms that the oppressive treatment of members of the LGBTI community and the lack of state protection is nationwide. I find that there is a serious possibility of persecution for the claimants throughout Ukraine and therefore find that there is no viable internal flight alternative.

[14]     Mister Interpreter, the following paragraph is the conclusion, or the determination.

[15]     INTERPRETER: Yes, Madam Member.

[16]     MEMBER: Based on the totality of the evidence, I find the claimants to be Convention refugees because they have demonstrated a serious possibility of persecution in Ukraine by virtue of their membership in a particular social group, namely, as a lesbian, for the principal claimant, and for the minor claimant, his familial relationship to the principal claimant. I accept their claims.

——————–REASONS CONCLUDED ——————–

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.

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 19^th, 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

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