Citation: 2022 RLLR 29
Tribunal: Refugee Protection Division
Date of Decision: November 9, 2022
Panel: Hannah Gray
Counsel for the Claimant(s): Melissa Singer
Country: Ukraine
RPD Number: VC2-06405
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division, the RPD, in the claims of XXXX XXXX, the principal claimant or the PC, and her daughter, the minor claimant, XXXX XXXX, of Ukraine, who are cleaning refugee protection pursuant to section 96 and section 97(1) of the Immigration and Refugee Protection Act, the IRPA.
[2] At the hearing, the principal claimant, who is the mother of the minor claimant, acted as the designated representative for her child pursuant to section 167(2) of the Act and Rule 20 of the RPD Rules. Throughout this hearing and in this decision, I have considered and applied the Chairperson’s Guideline 4 on gender considerations in proceedings before the Immigration and Refugee Board as these claims include allegations of a risk of gender-based violence. I have also applied and considered the Chairperson’s Guidelines on child refugee claimants’ procedural and evidentiary issues as it relates to the claim of the minor claimant.
DETERMINATION
[3] I find that the claimants are Convention refugees pursuant to section 96 of the IRPA based on their well-founded fear of persecution in Ukraine.
ALLEGATIONS
[4] The specifics of their claims are stated in the claimants’ Basis of Claim forms and narratives in evidence. The principal claimant is a 33-year-old XXXX and the minor claimant is a 13-year-old girl. And they are both from Kharkiv, Ukraine. The claimants are Russian speakers and the principal claimant’s cousin and her family live Saint Petersburg, Russia. Starting in 2014 the claimants began to experience discrimination in Kharkiv as they had Russian relatives who came to visit them often. The threats they received began to escalate in 2021 when the claimants’ home was vandalized and they received written threats on a few occasions. When they went to the police, the police did not assist them or offer them protection. As the war began at the end of February 2022, the claimants began to fear for their lives and fled to western Ukraine to Lviv in early XXXX 2022 where they attempted to rent a house. They were informed that they could only rent a home if they spoke Ukrainian and if the principal claimant’s husband fought for Ukraine. They were told to leave when the principal claimant informed the landlord that her husband would not fight for Ukraine. The claimants then fled from Ukraine to Poland and then to Canada where the claimant’s cousin lives in Montreal at the end of XXXX 2022. The claimants fear they will be persecuted due to their imputed political opinion in Ukraine as they are Russian speakers who have Russian family numbers. And they also fear being persecuted by the Russian military as Ukrainian women or girls by the invading Russian troops or killed by the ongoing missiles and bombs. The claimants made their refugee claim in April 2022.
ANALYSIS
Identity
[5] I am satisfied with the identity of the claimants as citizens of Ukraine which is established by their testimonies and the copies of their passport with Canadian visas in evidence.
Credibility
[6] According to Maldonado, when a claimant swears the truth of their allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. I find no reason to doubt the truthfulness of the claimants. They testified in a straightforward, forthright, detailed and candid manner and there were no material inconsistencies, omissions or contradictions between the claimants’ testimonies and the other evidence in their case. They did not exaggerate or tailor their evidence. And in summary, their testimonies were consistent with the other evidence on the central aspects of their claims. I find the claimants provided ample details to expand upon their allegations. And although the claimants did not provide additional corroborating documents, I do not draw a negative inference on their overall credibility. I find that the objective evidence before me as well as the claimants’ identification documents and credible testimony establish on a balance of probabilities the facts alleged in their claims. Including that the claimants are Ukrainian women or girls from Kharkiv and Russian speakers. In addition, I accept, on a balance of probabilities, that they were threatened and received written threats to their home on multiple occasions. Therefore, I accept the subjective fear they have of returning to Ukraine now as they have nowhere to live and no protection there. And in sum, I find the claimants to be credible witnesses and therefore, I believe what they have alleged in support of their claims.
Nexus
[7] To qualify for refugee status under the Refugee Convention, an individual must demonstrate that they have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. The allegations establish a nexus to the Convention ground for the claimants based on their membership in a particular social group as women or girls facing a risk of gender-based violence in a situation of war. In addition, the allegations support a nexus to the Convention ground for the claimants based on their imputed political opinion as they have relatives who are Russian family and who often visited them in Kharkiv from Russia. And therefore, the claimants experienced repercussions in the form of discrimination which escalated to threats due to their imputed pro-Russia political opinion. I will, therefore, assess their claims under section 96.
Well-founded Fear of Persecution and Risk of Harm
[8] I find that the claimants have established a well-founded fear of persecution based on their gender due to the war. The claimants testified that they were fearful for their lives prior to leaving Ukraine due to the threats they received as well as the escalating violence from the war in Kharkiv and throughout Ukraine. Country condition evidence from the most recent update of the National Documentation Package for Ukraine. In particular, an independent legal analysis of the Russian Federation’s breaches of the Genocide Convention in Ukraine and the duty to prevent by the New Lines Institute for Strategy and Policy at NDP Item 1.13. Establishes that there are one (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 two (2), the existence of a serious risk of genocide in Ukraine, triggering the legal obligation of all states to prevent genocide. This report provides examples of what it describes as a genocidal pattern of destruction targeting Ukrainians. The examples include mass killings, deliberate attacks on shelters and humanitarian routes, deliberately inflicting life-threatening conditions by targeting vital infrastructure, indiscriminate bombardment of residential areas, rape and sexual violence and forcible transfer of Ukrainians.
[9] One (1) second. Okay. In regards to the claimants’ risk of being persecuted as Ukrainian women or girls, a rapid gender analysis by Care International and UN Women at NDP Item 5.6 states that women constitute the majority of those displaced within and outside of the country. And they face significantly increased safety and protection risks, incidents of gender-based violence, particularly domestic violence and conflict-related sexual violence. Since the war began, women’s care burden has increased significantly with the lack of access to education facilities due to security risks, women’s engagement in volunteer activities, and men’s absence due to engagement in the armed forces. The war will increasingly impact unemployment rates among all categories of the population and will likely continue to push women into the unprotected informal sectors of the economy, poverty and dependency on social payments, especially among female headed households, will be expected to increase. This report, the rapid gender analysis, further states that staying in Ukraine can, however, have negative impacts on women and children’s security and can mean a lack of access to basic services. There are also accounts of family separation at the border. When women and children choose to leave, they face family separation and anxiety about the well-being of those left behind. This article further delves into the challenges for women of all ages to access aid and services in the war-torn areas of eastern Ukraine such as Kharkiv, where the claimants lived before coming to Canada. Many have fled and face further hurdles in accessing safe shelters in the western region of the country. This article states that, “For many respondents, financial and social support including pensions, child benefits and disability benefits is their only source of income. And many are concerned about whether they will be able to access these benefits. This is especially true for female headed households, families with persons with disabilities and families of pensioners. Moreover, this issue disproportionately affects women, who make up 72 percent of social protection recipients and the majority of older people and caregivers in Ukraine.”
[10] Women and girls are also more at risk of conflict-based sexual assault. NDP Item 5.6 states that there is increasing and concerning media reports of conflict-related sexual violence emerging in Ukraine, and many interviewees raised gender-based violence as a safety concern. Interviewed women CSOs highlight the particular risk of gender-based violence in occupied war affected areas. And the executive director of UN Women, Sima Bahous, noted in her speech to the UN Security Council, that this increasing information on sexual violence committed by the Russian forces is raising all the red flags. NDP Item 5.3 states that Kharkiv has been the site of heavy fighting between Russian and Ukraine forces since the start of the Russian invasion and continues to be one (1) of the front lines of the war. As a result, there is currently limited evidence available for what is happening in Kharkiv up to date. Based on the evidence before me and the circumstances of this claim, I find the claimants have demonstrated a well-founded fear of persecution on both a subjective and objective basis. I also find that the claimants would face a serious possibility of persecution in Ukraine based on their profiles as women or girls who would be at risk of gender-based violence by the Russian military who have invaded the country of Ukraine.
State protection
[11] The claimants faced threats and vandalism due to their Russian language and their relationship with their relatives who were Russian in the past between 2014 and 2021. When these threats were reported to the police, the police did not assist the claimants, and the police are no longer in a position to help civilians due to the war in Ukraine. While states are presumed to be capable of protecting their citizens, it is the obligation of the claimants to demonstrate on a balance of probabilities that their home country is unable or unwilling to provide adequate state protection. And I find that while Ukraine has done all it can to protect its citizens, it is currently unable to provide them with adequate protection because the enemy they face is better armed and has sheer numbers of weapons and soldiers that are more than the Ukrainians have at their disposal. NDP Item 5.6 states that women constitute the majority of those displaced within and outside of the country and they face significantly increased safety and protection risks. Incidents of gender-based violence, including domestic violence and conflict-related sexual violence, are increasing, but services for survivors are not provided in full. And in many parts of Ukraine, the police are no longer responding to such cases of domestic or conflict-related sexual violence. Furthermore, drivers, mostly women, feel it has become dangerous to drive a car in Ukraine now because traffic lights are not working, and there are no police on the streets. Based on all the country condition evidence available, it is evident that the current ability of Ukraine to defend itself is entirely reliant on the military contributions from other countries. And therefore, whatever protection is being offered to its citizens is actually a form of surrogate protection. In considering the totality of the information available to me, including the most up to date publicly available news report and all the objective evidence before me, I find the claimants have rebutted the presumption of state protection with clear and convincing evidence.
Internal Flight Alternative or IFA
[12] I will now consider a two (2) prong test in order to determine the viability of an internal flight alternative location for the claimants. First, I must be satisfied that, on a balance of probabilities, the claimants would not face a serious possibility of persecution or risk to life or of cruel and unusual treatment or punishment or danger of torture in the proposed IFA. Second, I must be satisfied that the conditions in the suggested IFA are not such that it would be objectively unreasonable, in all the circumstances including those particular to the claimants, for them to relocate and reside there. In the circumstances of this claim, I find that the risk the claimants face would exist throughout entire territory of Ukraine if they were to return now. The forces of the Russian Federation have shown the ability and willingness to strike each and every city in Ukraine from land, sea or air. They have also shown a willingness to indiscriminately rain artillery and missile fire on civilian infrastructure, bomb shelters, train stations, maternity hospitals and shopping malls. They have shown a willingness to summarily execute unarmed civilians, starve them of food, water and medical supplies and deprive them of basic necessities and sanitation.
[13] And this is reflected in the March 2022 UNHCR report on return to Ukraine found at NDP Item 1.23, that describes the situation in Ukraine as volatile and uncertain. The UNHCR report calls on states to suspend the return of nationals to the country. It 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. A June 2022 report at NDP Item 1.10 indicates that there are more than 8 million internally displaced persons in Ukraine. The report highlights numerous challenges in Ukraine facing internally displaced persons,ncluding the lack of accommodation, shortages of food, water and energy supplies, and barriers to accessing financial, social support and health services. In addition, the claimants did make – take steps to relocate within Ukraine. However, due to their Russian language as well as the fact that the principal claimant’s husband did not agree to join the war, they were not invited to stay longer at their place of residence in western Ukraine. The Ukrainian government has made some efforts to counter the Russian aggression and provide protection to its citizens. But in sum, its operational effectiveness falls short of adequacy. And this state of affairs exists throughout the entire country of Ukraine. Therefore, I find there is no location within Ukraine that the claimants could relocate to now and not face a serious possibility of persecution on the Convention ground of being a woman and a girl.
CONCLUSION
[14] For these reasons, I find the claimants are Convention refugees under section 96 of the Act and I accept their claims.
——— REASONS CONCLUDED ———