Citation: 2022 RLLR 25
Tribunal: Refugee Protection Division
Date of Decision: October 25, 2022
Panel: David Jones
Counsel for the Claimant(s): James Hill Lawson
Country: Ukraine
RPD Number: VC2-04081
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: So, this is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada for the claims of the principal claimant, XXXX XXXX and her husband, the associate claimant, XXXX XXXX who are citizens of Ukraine seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I have also reviewed and applied the Chairperson’s Guideline on Gender Considerations and Proceedings Before the Immigration and Refugee Board.
ALLEGATIONS
[2] The claimants fear a risk to their lives from the Russian army and Russian supporters if they were to return to Ukraine. Principal Claimant is 77 years old, and the associate claimant is 84. The claimants from Dnipro in Ukraine. On February 24th, 2022, Russia began a full-scale invasion of Ukraine. The claimants’ town was bombed at the start of the war. The claimants spent most of their time in a bomb shelter. The associate claimant became extremely ill due to the lack of water, food, and medicine. The claimants’ home has been damaged in the conflict. On XXXX XXXX, 2022, the claimants took a refugee train from XXXX XXXX XXXX, Poland. On XXXX XXXX, 2022, the claimants flew to Canada because they have family here in Canada. The claimants both have significant health issues. For example, the principal claimant is taking medication for her high blood pressure and kidney problems. The associate claimant has problems breathing, significant mobility issues and is scheduled to have heart surgery on XXXX XXXX, 2022.
DETERMINATION
[3] I find that the claimants are Convention refugees.
ANALYSIS
Identity
[4] The claimants’ identities as citizens of Ukraine has been established on a balance of probabilities by their Ukrainian passports located at Exhibit 1 as well as by their testimony.
Nexus
[5] The claimants fear persecution from the invading Russian army due to their Ukrainian nationality. Counsel for the claimants provided a sanitized RPD decision from January 30th, 2022 that is located at Exhibit 7. That decision provides for a detailed argument for why the current situation in Ukraine demonstrates that the claimants have a nexus to the Convention ground based on their nationalities. While other RPD decisions are not binding on me, the Federal Court has directed that administrative decisionmakers and reviewing courts alike must be concerned with a general consistency of administrative decisions as those affected by administrative decisions are entitled to expect that like cases will be generally treated alike and that outcomes will not depend merely on the identity of the individual decisionmaker. I do find that the decision at Exhibit 7 is persuasive, and I adopt the reasoning with respect to nexus to the Convention grounds due to the claimants’ Ukrainian nationality. And based on that analysis, I do find that the allegations before me support a nexus to the Convention grounds for the claimants based on their nationality as Ukrainians. In addition, the claimants’ allegations also support a nexus to the Convention ground based on membership in a particular social group as elderly persons with chronic health issues. Further, the principal claimant’s allegations also support a nexus to the Convention grounds based on their membership in a particular social group as a woman.
Credibility
[6] I find that the claimants are credible witnesses. In making that finding, I am relying on the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness unless there are reasons to doubt their truthfulness. The principal claimant provided the majority of the testimony, and she was able to testify clearly about their fears of returning to Ukraine. The principal claimant explained their health issues and the associate claimant’s mobility issues and how they have no support or family left in the country. The principal claimant described the mental difficulties she faced when living in the bomb shelter for almost a month and also the physical pain that caused them. The principal claimant described their fears in the Russian army and fascist groups and spoke in details about how their home was invaded, how food and clothing were stolen and how their dog was unfortunately killed. Finally, the claimants testified that their pensions were their only source of income. The associate claimant confirmed the principal claimant’s testimony and also spoke about the risks to him from stress due to his health.
[7] In addition, the claimant provided personal documents to support their claims, which are found at Exhibits 4 and 9. Personal documents consist of identity documents and documents related to the associate claimant’s health conditions. I have no reason to doubt the genuineness of these documents. I find that given the claimants’ credible testimony, documents and the country condition documents discussed below, that they have established on a balance of probabilities the facts alleged in their claims, including a subjective fear of returning to Ukraine.
Objective Basis
[8] The country condition documents for Ukraine in the National Documentation Package, which is found at Exhibit 3, supports the claimants’ fears of returning to the country. For example, a report from May 2022 at Item 1.13 called an Independent Legal Analysis of the Russian Federation’s Breaches of the Genocide Convention in Ukraine and the Duty to Prevent states that “(1), reasonable grounds to believe Russia is responsible for direct and public incitement to commit genocide, and a pattern of atrocities from which an inference of intent to destroy the Ukrainian national group in part can be drawn and (2), the existence of a serious risk of genocide in Ukraine, triggering the legal obligation of all States to prevent genocide.” The report provides examples of what I described says “genocidal pattern of destruction targeting Ukrainians”. Those examples include mass killings, deliberate attacks on shelters and humanitarian routes, deliberate inflicting life-threatening conditions by targeting vital infrastructure, indiscriminate bombardment of residential areas, rape and sexual violence and the forcible transfer of Ukrainians.
[9] With respect to gender-based violence, I find that the country condition documents indicate that the principal claimant would face an increased risk due to her gender. This finding is supported by an April 2022 report on sexual violence and the Ukraine conflict at Item 5.3 that states that since the Russian invasion in February 2022, there have been numerous reports of Russian soldiers sexually assaulting women. The report indicates that Russian soldiers have been deliberately targeting women and children after Ukraine did not surrender. In addition, there are reports that women including senior citizens were gangraped and, in some instances, killed. These reports of gender-based violence are also found in other parts of the National Documentation Package such as a Human Rights Watch report from April 3rd, 2022, which is found at Item 1.24 and the May 2022 CARE International Report at Item 5.6.
[10] With respect to the claimants’ age and health issues, a recent report in the National Documentation Package at Item 1.30 also indicates that there have been deliberate Russian attacks on health facilities in Ukraine. This report indicates that medical supplies across many parts of Ukraine are running low, especially in conflict-affected areas as access to many locations remain blocked. A report of social security and the war at Item 1.19 indicates that recipients of social security such as the claimants are in a vulnerable position. The report also indicates that Russia has been specifically targeting social infrastructure, particularly social care institutions. Finally, a report from the organization for security and cooperation in Europe, which is found at Item 2.7, indicates that there is evidence that Russian soldiers have targeted older persons intentionally. The report also notes that the destruction of social security system or the impossibility to get access to payment points constitutes a serious threat to the life for those such as the claimants who rely on their pension for income.
[11] The claimant also provided country condition documents which are found at Exhibits 5 and 6. For example, Exhibit 6 contains nine (9) articles highlighting war crimes committed by Russia since the start of the invasion and reports an article as describing the Russian attacks as genocide against Ukrainians.
[12] Based on the totality of the evidence, I find that the claimants have established a well-founded fear of persecution. Further, given the ongoing Russian invasion and that the claimants area has been attacked by Russia in the past, I find that the claimants face a serious forward-facing possibility of persecution if they were to return.
State Protection
[13] I have considered whether adequate state protection is available for the claimants, and I find that there is none. The claimants fear violence from the invading Russian army. While the Ukrainian state is attempting to provide protection from the Russian attack, there is great uncertainty about the level of protection a state will be able to provide. As such, I find that there is no operationally effective state protection available to the claimants in their circumstances.
Internal Flight Alternative
[14] I have also considered whether the claimants would have a viable internal flight alternative available to them and I find that they do not. The principal claimant testified that there is nowhere in the country where they could go and be safe and how they have no family or anyone else in Ukraine to support them if they were to return. Given the ongoing crisis in Ukraine related to the Russian invasion that is affecting the entire country, I find it would be unreasonable for the claimants in these circumstances to try to seek refuge elsewhere in the country. This is reflected in the March 2022 UNHCR report on returns to Ukraine, which is found at Item 1.23, that states that “In view of the volatility of the situation in the entire territory of Ukraine, UNHCR does not consider it appropriate to deny international protection to Ukrainians and former habitual residents of Ukraine on the basis of an internal flight or relocation alternative.” Further, a June 2022 report at Item 1.10 indicates that there are more than eight (8) million internally displaced persons in Ukraine. The report highlights numerous challenges facing the internally displaced persons, including the lack of accommodation, shortages of food, water and energy supplies, and barriers to accessing financial social support and house services. As such, I find that the claimants do not have a viable internal flight alternative available to them.
CONCLUSION
[15] For the reasons above, I determine that the claimants are Convention refugees pursuant to section 96 of the Act and the Board, therefore, accepts their claims. Given I am granting protection under section 96 of the Act, I find it unnecessary to consider their claims under section 97.
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