Citation: 2021 RLLR 90
Tribunal: Refugee Protection Division
Date of Decision: July 14, 2021
Panel: Selena Eng
Counsel for the Claimant(s): Lorne Lichtenstein
Country: Ukraine
RPD Number: TC0-04469
Associated RPD Number(s): TC0-04481 / TC0-04501
ATIP Number: A-2022-01778
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision in the claims for refugee protection made by the principal claimant, XXXX XXXX and the associate claimant, her husband, XXXX XXXX and their son, the minor claimant, XXXX (ph) XXXX in RPG file numbers TC0-04469, TC0-04481 and TC0-04501.
[2] The claimants are citizens of Ukraine and are claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.
[3] The events – the facts and events alleged in support of their claims are set out in their respective Basis of Claim forms. In summary the claimants allege persecution in Ukraine on the basis the principal claimant and minor claimant’s ethnic Roma identities.
[4] I find that the claimants are Convention refugees within the meaning of Section 96 of the IRPA.
[5] The claimants identities were established on a balance of probabilities by the certified true copies of the Ukraine issued passports in their names contained at Exhibit 1.
[6] Based on – based on the consideration of the totality of the evidence including the claimant’s testimonies I find on a balance of probabilities that XXXX XXXX and her sonXXXX XXXX XXXX are ethnic ROMA. The associate claimant, XXXX XXXX is Ukrainian but has testified to facing discrimination through his family relationship with the claimants.
[7] I note that the principal claimant and her husband, the associate claimant, both testified at the hearing. The minor claimant who is currently 17 years old also provided testimony.
[8] With regard to credibility I find that the claimants testified in a straightforward fashion with regards to the central elements of their claim. I find that the claimants overall testimonies were credible and I accept on a balance of probabilities that they have faced discrimination that would rise to the level of persecution and would continue to face a serious possibility of persecution on a forward looking basis should they return to Ukraine.
[9] In their Basis of Claim forms and in their testimonies the claimants provided details regarding instances of discrimination Ukraine which I will summarize.
[10] The principal claimant is of mixed Roma descent as her mother is Roma but her father is Ukrainian. The principal claimant testified about identifying as Roma and also being identified by other Ukrainians as Roma due to her darker complexion and physical characteristics.
[11] The principal claimant testified about problems starting around the fall of 2018 after her aunt who was Roma stayed at their home for a week in September of 2018.
[12] The claimant testified that this brought further attention to other Ukrainians that her family were Roma and they began receiving threatening phone calls from unidentified Ukrainians over the course of three months who subjected them to racist language and told them to leave their city and XXXX because they were Roma.
[13] The principal claimant testified about blocking the numbers but continued to receive phone calls from other identified numbers until the call stopped. The claimant’s home was also spray painted with graffiti on their door several times in October 2018 identifying their family as Roma and calling death to Roma.
[14] The principal and associate claimants also testified about one of their neighbours who was an ultra nationalist Ukrainian that made derogatory remarks against the principal claimant and the associate claimant for marrying a Roma woman.
[15] I find that the principal claimant’s testimony to be detailed, spontaneous and credible and I except that she was identified as being Roma which led her family to face discrimination and threatening and racist calls in addition to discrimination by an ultra nationalist neighbour.
[16] The principal and associate claimants were also subjected to physical attack. On December 16th, 2018 by nationalist Ukrainians in the parking lot of the grocery store. The principal claimant described being identified as Roma and the nationalist accusing her and her husband of eating food meant for Ukrainians and poisoning their city with their presence.
[17] The claimants were taken by ambulance to the hospital where they were treated for multiple injuries. The principal claimant was hospitalized for five days and the associate claimant for three days. I heard evidence of the police ignoring the claimants complaints and closing the file without doing any investigation because they did not take their complaints seriously due to her being – due to the principal claimant being Roma.
[18] The claimants provided medical reports dated December 16th 2018 found that Exhibit 5, page 2 to 8 confirming their admission to the hospital for the principal claimant and associate claimant noting their injuries including a brain concussion of median degree, numerous bruises to the body and blows and abrasions of soft tissues to the face, head and neck.
[19] A police report was also provided at Exhibit 5, pages 10 to 11 stating that further investigation into the claimants statements was considered inadvisable due to the absence of evidence of witnesses. I am satisfied to the principal claimant’s credible testimony and supporting documentation that she and her husband were both physically attacked and suffered injuries due to being identified as a Roma couple and that police did not investigate into their complaints.
[20] The principal claimant also testified that she was attacked by two nationalists on April 4th, 2019 as she was making her way from a friend’s house in their neighbourhood. The claimant was transported to hospital by ambulance where she was diagnosed with several injuries. A medical report provided at Exhibit 5, page 16 to 18 indicates the claimant sustained a brain concussion in addition to dislocation of her wrist joint and hematoma of her left eye which was stated as a result of a beating by attackers.
[21] The principal claimant reported the incident to police who she indicated ignored her complaint and not – did not take down notes after hearing that she was beaten because she was Roma. A police report found at Exhibit 5, pages 20 to 21 indicates that the initiation of criminal proceedings was found inadvisable due to the impossibility to identity the attackers.
[22] I’m satisfied through the claimant’s credible testimony and corroborating documentary evidence that the principal claimant was attacked by Ukrainian nationalists on more than one occasion and that the police did not investigate into the matter or take her complaint seriously due to the – due to the nature of the attack being against a Roma person.
[23] The principal minor claimant also testified about the discrimination the minor – sorry, the principal and minor claimant also testified about the discrimination the minor claimant faced in February 2019 when he was accused of stealing at the school because he was Roma. The minor claimant testified about being identified as Roma from being picked up at the school by his Roma grandmother.
[24] I heard testimony about the principal claimant speaking to the principal of the school when her son was later found to be innocent to complain about the incident only to be told by school authorities that where there are Roma students there will be problems.
[25] I heard testimony regarding the minor claimant developing XXXX due to the problems he was having at school and how he was seen by a doctor. A medical letter dated February 28, 2019 found at Exhibit 5, pages 13 to 14 indicates that the minor claimant was seen by the XXXX XXXX XXXX for XXXX help in XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX with his classmates and teachers on the grounds of his ethnicity. Medications and XXXX sessions were prescribed.
[26] The minor claimant testified about continuing to have problems in school and the students making derogatory remarks behind his back due to his Roma ethnicity. I find the principal and minor claimants testimonies were credible and supported by the documentary evidence.
[27] I find that the minor claimant was identified as being Roma and continue to face discrimination in his school.
[28] The principal claimant testified about fearing for her life after the second attack against her and deciding to leave Ukraine permanently for Canada where the associate claimant’s brothers are citizens. The claimants for Canada as soon as the principal claimant was able to obtain her visitors visa and left on XXXX XXXX, 2019.
[29] I found the claimants testimony to be credible and lacking in embellishment. I find that the claimants provided documentary evidence to support their claims including medical letters and police reports corroborating the incidents that happened.
[30] The claimants also provided letters from the Roma community group and photographs of the principal claimant with her extended Roma family supporting the principal’s claimants identity which can be found at Exhibit 5. I find that these documents to be authentic and credible and corroborate the claimants testimonies.
[31] I find that although the associate claimant is not Roma, he was identified as being part of a Roma family and also subjected to racist language and threats in addition to being physically assaulted.
[32] Based on the testimony evidence before me I find that the claimants have experienced discrimination and attacks that would cumulatively amount to persecution. I find that the claimants have established a subjective fear of persecution.
[33] Regarding the delay in claim, I heard evidence of the claimants arriving in Canada in XXXX 2019 but not filing refugee claim until around February of 2020. The principal claimant testified that they were not aware they could file a refugee claim upon arriving in Canada.
[34] The claimants sought the assistance of an immigration consultant shortly after they arrived who advised that – who advised the associate claimant to make an application for a work permit to obtain status. The claimants testified about the consultant not asking them questions and not being aware about them being eligible for refugee claim until they spoke to their current legal counsel who was able to provide them proper legal advice.
[35] I find that the claimants were honest and forthright with their explanations as to why they did not immediately seek refugee protection after first arriving in Canada. I accept that the principal claimant’s testimony that they were not aware they could file a refugee claim or that they would have done so sooner and that they followed the advice of their immigration consultant who was unsuccessful with helping them obtain status which made the claimant seek further legal counsel and at which time they were able to learn that they could make a refugee claim.
[36] I do not find the claimants delay in making a refugee claim in Canada negatively affects the claimants credibility as it relates to their fear of persecution in Ukraine.
[37] Regarding the country documentation and objective basis evidence, the National Documentation Package for Ukraine indicates that Roma experience widespread discrimination in the country. The United States Department of State report at Item 2.1 of the NDP indicates that Roma and Ukraine continue to face governmental and societal and significant barriers against accessing education, health care, social services and employment.
[38] It was noted that human rights activists remain concerned about the lack of accountability in cases of attacks on Roma and the government’s failure to address societal violence and harassment against Roma.
[39] Amnesty International report for 2020 and 2021 at Item 2.2 indicates that discrimination against Roma persisted and the past attacks were effective – were not effectively investigated. The minority rights group Europe 2019 report on Roma at Item 13.7 of the NDP contains multiple examples of police inaction our outright violence against the Roma people in Ukraine including the increasing prevalence of hate speech and violence by far right groups in the country.
[40] Based on the claimants testimonies today I find that there has been systemic discrimination against the principal and minor claimants being Roma in Ukraine which also affected the minor claimant’s education.
[41] In addition, I find that the claimants were targeted and assaulted by nationalist Ukrainians on the basis of the principal claimant’s Roma ethnicity. Likewise I find the associate claimant also faced discrimination and abuse due to his relationship with his wife because she is Roma and also his son, also because he is Roma.
[42] Based on the testimony and evidence I find that the claimants have faced discrimination that cumulatively rise to the level of persecution.
[43] Regarding state protection, the documentary evidence tells me that although there are attempts to make changes to improve the situation for Roma in Ukraine, problems still remain today.
[44] In addition to the evidence mentioned above, Item 13.7 of the NDP indicates a number of incidences of violence and attacks against Roma, particularly in Roma settlements where police or local authorities fail to either prevent attacks or meaningfully investigate, contributing to further dehumanization of Roma in they public discourse and fostering a climate of impunity among far right groups. Item 13.7 also indicates that police themselves have been major perpetrators of violence against Roma.
[45] Based on these country conditions and based on the claimants testimonies which I have found to be credible I’m satisfied that state protection would neither be adequate nor forthcoming. There are multiple instances reported of Roma individuals seeking protection and being subjected to racist or discriminatory actions by police including the claimants own experiences dealing with police after they were attacked in Ukraine and no follow up or investigation conducted. As such I find the claimants have met their onus and rebutted the presumption of state protection.
[46] I also find that there is no Internal Flight Alternative available to the claimants as the problems with discrimination and the response by the police and authorities appear to be nationwide based on the evidence cited above.
[47] In conclusion, having considered all of the evidence I find that XXXX XXXX, her husband XXXX XXXX and their son, XXXX XXXX are Convention refugees and have established a serious possibility of persecution. I accept their claims. Thank you.
———- REASONS CONCLUDED ———-