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.