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 ——————–