2023 RLLR 112

Citation: 2023 RLLR 112
Tribunal: Refugee Protection Division
Date of Decision: April 17, 2023
Panel: Hannah Gray
Counsel for the Claimant(s): N/A
Country: Ukraine
RPD Number: VC3-00901
Associated RPD Number(s): VC3-00902
ATIP Number: A-2024-00593
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, a citizen of Ukraine, and his spouse, XXXX XXXX, the associate claimant, a citizen of Russia, who are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, the IRPA. In their claims I have considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics. 

DETERMINATION

[2]         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 and in Russia. 

ALLEGATIONS

[3]         The specifics of the claims are stated in the claimants Basis of Claim forms and narrative in evidence as well as their updated Basis of Claim forms. The claimants are a married same-sex capital, aged 26 and 37 respectively. The principal claimant is a citizen of Ukraine, who resided in Moscow and had a temporary — sorry had a temporary status in Russia. The associate claimant is a citizen of Russia. They met in 2017 and both worked and live together in Moscow Russia. They fled to Canada in XXXX 2022 and made their refugee claim in November 2022. The claimants fear returning to Ukraine and Russia due to the homophobic policies and persecution towards LGBTQ+ persons. They also fear forced conscription in both Russia and Ukraine due to the Russian invasion of Ukraine. 

ANALYSIS 

Identity

[4]         The claimants’ personal identities and their identities as nationals of Ukraine and Russia has been established by their sworn testimonies and the certified copies of their passports in evidence in Exhibit 1. The associate claimant testified that he was born in Kazakhstan and had citizenship there up until 2017 when he moved to Russia. He testified that he is no longer a citizen of Kazakhstan, as they do not allow for dual citizenship. The National Documentation Package for Kazakhstan at Item 3.1 states that citizens of the Republic of Kazakhstan are persons who permanently reside in the republic of Kazakhstan on the date of entry into force of this law, born on the territory of the Republic of Kazakhstan, and are not citizens of a foreign country and acquire the citizenship of Republic of Kazakhstan in accordance with this law. A citizen of the Republic of Kazakhstan is not recognized as a citizen of another country. As the associate claimant provided his Russian passport and testified to living in Russia and being a citizen of Russia, I find that he is no longer a citizen of Kazakhstan, and therefore it is not a country of reference in his claim. I accept that the claimants are nationals of Ukraine and Russia and not nationals of any other countries. 

Credibility

[5]         When a claimant swears to 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 their testimony and the other evidence in this case that were not reasonably explained. 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 claim. The claimants provided ample details to expand upon their allegations and they also provided evidence in Exhibit 4 which included their marriage certificate from Canada in 2022 and the associate claimant’s military draft subpoena from Russia. I have no reason to doubt the genuineness of these documents and since the documents relate to the claimant’s relationship as a married same-sex couple, and the associate claimant’s requirements to join the Russian forces if he were to return now, I place significant weight on these documents to support their claims. Given the claimants’ careful testimonies and supporting documents, I find that they have established on a balance of probabilities the facts alleged in their claims, including that they are a same-sex couple who are married, and that Russia and Ukraine currently are conscripting military aged men into the armed forces. And therefore, I accept the subjective fear they have of returning to either Ukraine or Russia now. In sum, I find the claimants to be credible witnesses and believe what they have alleged in support of their claims. 

Nexus

[6]         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 here establish a nexus to the Convention for the claimants based on their membership in a particular social group due to their sexual orientation as gay men, who are married to each other and who fear forced conscription. I will therefore assess their claims under section 96. 

Well-Founded Fear of Persecution & Risk of Harm

[7]         I find that the claimants have a well-founded fear of persecution in both Russia and Ukraine based on their sexual orientation. 

[8]         I will first assess the risk of harm in Russia. I find that the claimants have established sufficient credible evidence to demonstrate that they face more than a serious possibility of persecution if they were to return to Russia now. Discrimination against the LGBTQ+ community in Russia is widespread and severe, including by the authorities, and this can be found at Item 6.7 of the National Documentation Package for Russia. A homophobic campaign continued in state-controlled media, in which officials, journalists and others derided LGBTQ+ persons as “perverts, sodomites and abnormal and conflated homosexuality with pedophilia”. A law prohibiting the propaganda of non-traditional sexual orientation, restricted freedom of expression, association, and peaceful assembly for LGBTQ+ persons and their supporters, and the claimants have testified about this law today in their testimony. There is also no law to prohibit discrimination against LGBTQ+ persons in housing, employment or access to government services and there were reports that government agents attack, harass and threaten LGBTQ+ activists. LGBTQ+ persons were particularly or particular targets of societal violence and police often fail to respond adequately to such incidents. Public officials portray LGBT identities as contradictory to Russian and orthodox values and as a western phenomenon imposed by Europe as part of its agenda to weaken and alienate Russia, and this is found at Item 6.3 of the NDP. Hate speech against LGBTQ+ persons is state-led and legislation severely restricts challenges against the dominant hateful narrative and laws aimed at preventing incitement to discrimination or violence are more likely to be used to prosecute than protect minorities, and this can be found at Item 2.1 and 6.3 of the National Documentation Package for Russia. I find that the claimants have therefore established a future risk that they would be subjected to societal abuse, mistreatment and violence at the hands of the community at large as well as the authorities such as the police due to their sexual orientation if they were to return to Russia now. I therefore find they have established a well-founded fear of persecution in Russia. 

[9]         I will now assess the situation in Ukraine. The National Documentation Package for Ukraine describes Ukraine as a society that continues to harbor significant anti-LGBTIQ2 sentiment despite some signs of change. NDP Item 6.3 states that when first elected, President Zelenskyy told reporters ‘We live in open free society where everyone chooses a language to communicate and his orientation. Leave these people alone. Enough.’ The state has shown some signs of a willingness to improve, as reflected by its President’s statement. However, change has been slow and there are significant opposition both socially and from the authorities. The rights of LGBTIQ+ people in Ukraine are not fully protected, leaving them vulnerable to violence and discrimination, and this can be found at Item 6.4 of the NDP. NDP Item 2.1 establishes that events organized by the LGBTQ+ community were regularly disrupted by members of violent radical groups. Police at times did not adequately protect participants from attack before or after the events, nor did they provide sufficient security for smaller demonstrations or events, especially those organized by persons belonging to minority groups or opposition political movements. There was societal violence against LGBTIQ+ persons, often perpetrated by members of violent radical groups, as mentioned earlier. Additionally, Item 6.2 of the NDP states that police also committed violence against LGBTIQ+ people and victims rarely appeal to public associations that protect the rights of them and in about half of the cases, they did not get help. Religious leaders have also made anti-LGBTIQ+ statements and Ukraine has failed to criminalize hate speech, although the state did pull the licence of one (1) media outline broadcasting anti-LGBTIQ statements The LGBTIQ2 human rights group Nash Mir Centre’s annual report documented 369 cases of violence and discrimination against LGBTIQ+ people in 2019. A study on attacks against activists show that LGBTIQ+ activists were the most at risk and this could be found at NDP Item 6.1. Furthermore, NDP Item 2.1 states that when the Russians occupied Crimea, most LGBTIQ+ individuals fled and those who remained lived in fear of abuse due to their sexual orientation or gender identity. The UN Human Rights Council’s Independent Expert received reports of increased violence and discrimination against this community in Crimea, as well as the use of homophobic propaganda employed by the occupation authorities. Therefore, I am satisfied that now with the invasion of Ukraine by Russia, there is an increased threat to any LGBTIQ+ people in any part of the country that may fall under Russian control now or in the future. 

[10]      Therefore, I find the claimants have demonstrated a well-founded fear of persecution on both a subjective and objective basis and I find they would face a serious possibility of persecution in either Ukraine or Russia as a married gay couple. 

State Protection and Internal Flight Alternative

[11]      In all refugee claims, a state is presumed to be capable of protecting its citizens unless there is clear and convincing evidence to the contrary. In this case, I find this presumption has been rebutted. To prevent this presumption, a claimant must establish on a balance of probabilities through clear and convincing evidence that their state’s protection is inadequate and the onus is on the claimant to rebut this presumption. 

[12]      I will first assess the situation in Russia. In the claimants’ particular case, the state is one (1) of the agents of persecution and I find that the objective evidence on file indicates that they would face persecution at the hands of authorities among others if they were to return to Russia. Accordingly, I find it would be objectively unreasonable for them to seek state protection in Russia and consequently, the presumption of state protection has been rebutted. With respect to internal flight alternative, meaning if there were to be somewhere safe for them to live in Russia, I do not find that they could live safely in any other part of the country given that the state is one (1) of the agents of persecution and has control over all of its territory. Furthermore, based on the evidence before me, I find there is a serious possibility of persecution throughout Russia as the situation with respect to LGBTIQ+ persons is consistent throughout the entire country and I find they would face a serious possibility of persecution throughout the entire country of Russia. 

[13]      I will now assess the situation in Ukraine. In Ukraine’s National Documentation Package at Item 6.5, which was published prior to the Russian evasion, it states that the police are extremely reluctant to investigate cases of homophobic and transphobic crime and most of the victims do not report attacks to the police as they do not trust the system. They fear harassment and violence from the police or having to divulge information about their sexual orientation. The absence of an effective investigation and relevant legal categorization of these offences as hate crime sends a clear message about impunity for such crimes. While country documents indicate that the police have shown some initial signs of improvement in their treatment of the LGBTIQ+ people, there are still homophobic incidents and investigation of homophobic hate crimes is extremely unsatisfactory and even when forced to investigate, it never leads to indictment, and that is at NDP Item 6.3. Currently, Ukraine is at war with Russia since the Russian evasion began in late February 2022. In the Ukraine-held territory, I am satisfied that the state continues to fail to provide adequate and effective protection in a consistent manner to the LGBTIQ+ people as detailed above and if Crimea is any indication, things will be much worse in any areas that fall under Russian control with the state being an active agent of persecution. Accordingly, I find there is no adequate state protection available to the claimants in their particular circumstances and I find that the presumption of state protection has been rebutted. In addition, I find the state of Ukraine is no longer in control of all of its territories and where the Russians have taken over, the situation is even more dire for LGBTIQ+ people. Therefore, I find the claimants face a serious possibility of persecution throughout the entire territory of Ukraine and there is no viable internal flight alternative available to them. 

CONCLUSION

[14]      For these reasons, I find the claimants are Convention refugees under section 96 of the Act and I accept each of their claims. 

——— REASONS CONCLUDED ———