2023 RLLR 101

Citation: 2023 RLLR 101
Tribunal: Refugee Protection Division
Date of Decision: August 31, 2023
Panel: Cristina De Leon
Counsel for the Claimant(s): Maksim Gonyakin
Country: Russia
RPD Number: TC3-00273
Associated RPD Number(s): N/A
ATIP Number: A-2024-00593
ATIP Pages: N/A

DECISION

[1]         MEMBER: This is a decision in the claim for refugee protection made by the claimant, XXXX XXXX, TC3-00273. The claimant is a citizen of Russia and is claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act or IRPA.

ALLEGATIONS

[2]         The allegations in support of the claim are set out in the claimant’s Basis of Claim form marked as Exhibit 2. In summary, the claimant fears harm and persecution by members of a crime group headed by XXXX XXXX (ph), or XXXX (ph), who have targeted his business for a forced takeover. He also fears being charged for evasion and desertion under the Criminal Code of the Russian Federation for refusing conscription due to his opposition to the war in Ukraine. 

DETERMINATION 

[3]         I find on a balance of probabilities that the claimant faces a risk to life or a risk of cruel and unusual treatment or punishment at the hands of the crime organization headed by XXXX XXXX if he were to return to Russia.

Nexus 

[4]         The claimant’s fear of harm arises from criminality and corruption, and I find that there is no nexus to any of the five (5) Convention grounds. 

Identity

[5]         The claimants’ identity is established on a balance of probabilities by a certified true copy of his Russia-issued passport.

Credibility

[6]         The claimant testified in a detailed, spontaneous, and straightforward manner with regard to the central elements of his claim. There were no inconsistencies or omissions which were material or which went to the core of the claim. I find that the claimant was a credible witness. The claimant also submitted documentary evidence which corroborated elements of the claim. He submitted certificate of registration, the charter of the corporation balance sheet, a statement of transactions and personal account of the company, and other documents to establish on a balance of probabilities his ownership of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The claimant also submitted a doctor’s note with regard to his injuries and treatment on XXXX XXXX, 2022. He also submitted witness statements with attached passports of two (2) employees of his XXXX company with regard to the visits to the company on XXXX XXXX, 2021, and XXXX XXXX, 2022, of XXXX XXXX’s men. He also submitted a statement from a neighbour regarding visits from unknown men to the claimant’s apartment and inquiries about him, as well as the mailing of summons from the military enlistment office to the claimant’s address. I have no reason to doubt the veracity of these documents, and as such I place great weight on them in support of the claim. 

[7]         Based on the credible testimony and the corroborating documents, I find on a balance of probabilities that the claimant was a XXXX XXXX XXXX and XXXX of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The XXXX company was engaged in XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The business was very successful and profitable, and in 2021 its annual turnover was XXXX XXXX rubles. I find on a balance of probabilities that in the year 2020, the claimant started receiving intimidating phone calls from people who demanded sale of the company. The claimant refused to entertain these calls or engage in any conversation about the sale of his business. He largely ignored these phone calls or refused to answer these calls. 

[8]         I find on a balance of probabilities that on XXXX XXXX, 2021, a man who introduced himself as XXXX (ph) showed up at the company office at Tver with two (2) well-built men. They offered to buy out the company for (inaudible) of XXXX XXXX XXXX rubles under threat that, if he refused, the claimant and his wife would not live to see the following year. I accept that on the very same day, the claimant went to the XXXX XXXX police department of the city of Tver and submitted a statement about the situation. The police investigator sneered and told him that he did not understand the complaint, and that these people likely came to him with a legitimate commercial offer which he did not like. The claimant believed, and I accept, on a balance of probabilities, that the investigator likely knew what was going on and was protecting or complicit with the men. 

[9]         The claimant testified, and I accept, that he communicated with his suppliers and other directors of other companies about his situation, and he described XXXX and his men, and these people told him that he was dealing with XXXX XXXX’s guys, who are known criminals in the region who engage in business racketeering, including extortion of a roof for protection of businesses. I find on a balance of probabilities that again, on XXXX XXXX, 2022, XXXX came to the office and told the claimant that his time was up and that they should be signing an agreement soon on the sale of the company. The claimant did not respond, deferring the decision in order to buy time to allow his wife to obtain a visa to Canada. 

[10]      I accept that in XXXX of 2022 XXXX and his men came to the office several times and inquired about his whereabouts. The claimant was in Armenia at that time, attending to vaccination requirements for travel to Canada. I find on a balance of probabilities that on XXXX XXXX, 2022, the claimant was getting out of his car when two (2) unknown persons attacked him from behind. They hit him on his head and he lost consciousness. When he regained consciousness, the claimant saw a horrible sight at the back seat of his car. His dog lay dead. They  killed his dog. He understood this to be his final warning and that the next time he would be killed. After receiving hospital treatment, the claimant and his wife packed two (2) suitcases, left their residence, and moved to his nephew’s place in the village of XXXX , XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. On the way to the XXXX, they passed by a village where the claimant and his wife buried his dog. They stayed in XXXX until the claimant flew to Canada. 

[11]      I accept on a balance of probabilities that on XXXX XXXX, 2022, the claimant spoke with a prosecutor’s office in the city of  XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The prosecutor interviewed him and told him that they would contact him. After two (2) weeks, the claimant had not heard from anyone, and so the claimant went to the prosecutor’s office again. He was told that they had no information and the prosecutor asked him to leave his office and not to disturb him again. At that point, the claimant decided it was time to leave. 

[12]      Since leaving for Canada, the claimant has heard from his neighbour that unknown people of muscular build have repeatedly come to his apartment building looking for him. The neighbour also advised that in the claimant’s mailbox he found summons from the military enlistment office issued to the claimant’s name with a demand to appear at the military registration and enlistment office at the place of registration. The claimant is opposed to military service and opposed to the — what he calls the criminal war in Ukraine. He does not want to fight in this illegal war. 

Particularized Risk

[13]      I find that the claimant’s fear or risk arises from his ownership, and XXXX, and XXXX of a multimillion XXXX enterprise in Russia which has been targeted by a crime organization protected and supported by the state security apparatus. I find that this risk is particularized and personal to the claimant, and it is distinct from the generalized risk faced by the rest of the population in Russia. 

Forward-Looking Risk

[14]      The objective evidence reveals links between organized crime and Russian state powers. Item 1.4 of the National Documentation Package for Russia, which is Exhibit 3 at page 192, describes the most dangerous types of police corruption in Russia, referring to high-order activities related to invisible, well-coordinated services which the police provide to organized crime groups, along with business racketeering. I note that Item 1.4 specifically identifies shakedowns, forced takeovers, selling assets, and the so-called roofing. 

[15]      Exhibit 7 is a March 23, 2018, article entitled, Gangster’s Paradise: how organized crime took over Russia, by Mark Galeotti, published in The Guardian. It describes the following, and I quote. “A key characteristic of organized crime in today’s Russia is the depth of its interconnectedness with the legitimate economy. Unpicking dirty from clean money in Russia is a hopeless task, not least because in the 1990s it was next to impossible to make serious amounts of money without engaging in practices that were ethically questionable at best, and downright illegal at worst. 

[16]      ‘Raiding’ – the seizure of assets and companies through physical or legal coercion remains a serious problem, but it depends less on violence than it did in the past. One (1) British-based businessmen told me” — the author — that in 2009 he had to fly to Moscow at a moment’s notice on two (2) separate occasions because of attempts to steal one (1) of his properties. The first time, thugs appeared at the door and marched their way past the security guard. The businessmen had to call in favours from the local police on order to have them thrown out. The second time, though, the raiders came in the form of lawyers and bailiffs, bearing documents alleging the property had been signed into their possession in order to discharge a (non-existent) debt. Whereas getting rid of the thugs took a few hours and, I suspect, a moderate bribe to the police chief, dealing with the legal challenge took weeks, and large amounts paid out in legal fees and illegal inducements. 

[17]      This does not make the new gangster-businessmen champions of the rule of law. They appreciate a degree of predictability within the system, and also – now that they are rich – a state apparatus dedicated to preserving property rights. However, they are also well aware that an honest, well-functioning police force and a dedicated, incorruptible judiciary would be a serious threat to them. As a result, they have a strong interest in preserving the current, compromised status quo.”

[18]      Exhibit 6 is an October 12, 2012, article entitled, The Russian Mafia and organized crime: how can this global force be tamed?, published by openDemocracy. It states the following: “Russian organized crime enjoys significant levels of state protection. In Russia and other countries of the Former Soviet Union, it is not just a question of organized crime being big business. Big business is organized crime. And, given that no big business in Russia can operate without government approval (just ask the numerous exiles who left Russia in 2003 after the arrest of Mikhail Khodorkovsky) it follows that the state and organized crime are inextricably linked. Russian Transnational Organized Crime has other features which are less familiar to Western law enforcement agencies operating in countries where the rule of law is paramount. It has connections. There are close, almost seamless, links with the ‘deep state’ kleptocracy of government, parliament, civil service, law enforcement and business at all levels, as well as the military and, above all, the security services.”

[19]      Item 7.5 of the NDP, which is Exhibit 3, indicates that some elected Russian officials have been found guilty of associating with organized crime groups or those with criminal records. In some cases, they form organized and persistent criminal enterprises which engage in a range of criminal activities and are largely dependent on their specific positions in government. As a result, gangs within the security agencies are particularly powerful. It indicates that virtually every major illicit market is controlled by mid to high-level members of the security forces under the tacit supervision and control of higher-level political elites, both at the local and federal level. Additionally, the state deals with large and violent criminal groups by allowing some crime bosses to operate both on the black market and in legitimate businesses on the condition of not drawing public attention through violence. Many past criminal leaders went into legitimate business or politics in the period following the fall of the Soviet Union, and those who still try to operate independently are typically outgunned by the law enforcement protection bracket. 

[20]      I find that organized crime in Russia has an entrenched links to Russian state powers and, above all, to law enforcement and state security officers on a balance of probabilities. I find on a balance of probabilities that organized crime groups engage in, among others, business racketeering, including business seizure and raiding, and forced takeovers of business, and this a serious problem in Russia. While the article suggests that raiding depends less on violence in today’s Russia, the article does not rule out violence. I find credible the claimant’s evidence that he was attacked and rendered unconscious, and his dog killed, certainly showing what the crime groups are capable of doing, and sending a warning of violence if he were to refuse their demands. 

State Protection 

[21]      Given the links between organized crime in Russian security apparatus, I find that state protection will not be available on a balance of probabilities to the claimant. I note that the claimant tried to report the threats and the attack to the police and the prosecutor of XXXX, and they did not take his statement or extend any protection, or even start any investigation on his behalf. 

[22]      I also note that according to Item 1.4 there is a performance evaluation system in place for Russian police which creates an incentive that undermines the integrity of police work. Item 1.4 describes the high pressure on police officers to produce acceptable statistics, which results in a tendency for officers to only open cases that they know can be solved. This apparently is most prevalent in the area of criminal investigations. When a criminal case has been filed, the decision to open a formal investigation depends not only on the prospect of finding and apprehending a suspect, but also on the evaluation of the officers, whether the case will lead to official charges. If a case is passed on it without leading to official charges, none of the time spent by the frontline officer on the initial investigation tends to be credited to him personally or to his department as a whole. Therefore, the performance evaluation rewards the decrease in the number of complaints and penalizes the termination of a case for rehabilitation or acquittal of the suspect. A cited study concludes that utter refusals by police officers to initiate criminal investigations, up to 90 percent intended to hide crimes that are difficult to solve. Refusals can be made by convincing the crime victim not to report or by officially refusing to start a criminal investigation, and I note that this is what happened to the claimant. 

[23]      I find that on a balance of probabilities this was also at play when the Tver police and the XXXX prosecutor refused to start an investigation or to even accept this report. I find on a balance of probabilities that the presumption of state protection has been rebutted, and that the claimant will not be able to avail of state protection in Russia. 

Internal Flight Alternative

[24]      The Panel suggested Saint Petersburg as a possible internal flight alternative location. I have considered the nexus between the organized crime and state security apparatus. I have considered the size and profile of the claimant’s XXXX business. I have considered the evidence of continuing inquiries about the claimant’s whereabouts, even as he arrived — or moved to Canada. I find that there is motivation on the part of his agents of harm to pursue him and locate him wherever he may relocate. I also accept, based on the objective evidence, that the claimant will be required to register his personal information with the Russian authorities upon return to the country. Per Item 14.one of the NDP, according to the law on the rights of the citizens of  the Russian Federation to the freedom of movement, citizens of the Russian Federation are obliged to register their place of permanent or temporary residence with the authorities. I find on a balance of probabilities that the claimant can therefore be tracked by his agents of harm and will, on a balance of probabilities, be pressured and harmed to legally transfer his business. Or, if the business has in the meanwhile been already transferred illegally, he will be pressured and harmed to coerce his validation of such transfer and/or he will be eliminated to preclude any legal challenge from him. 

[25]      I also find on the balance of probabilities that, with his residence being registered, he will be subject to summons to be mobilized to the war in Ukraine. The claimant, being opposed to the war, will refuse to be mobilised. And according to Item 8.2 and 8.4 of the NDP, he will be subject to prosecution for draft evasion or for desertion under article 328, 337, and 338 of the Criminal Code of the Russian Federation. I therefore find that there is no safe and viable internal flight alternative location for the claimant anywhere in Russia. 

CONCLUSION 

[26]      I therefore find on a balance of probabilities that the claimant faces a serious risk to life or a risk of cruel and unusual treatment or punishment if he were to return to Russia. I find that the claimant, XXXX XXXX, is a person in need of protection under section 97(1)(b) of the IRPA. The claim is therefore accepted.

——— REASONS CONCLUDED ———