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.