2023 RLLR 114
Citation: 2023 RLLR 114
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2023
Panel: Ademiju Olatunji
Counsel for the Claimant(s): David P Yerzy
Country: Tajikistan
RPD Number: VC3-02614
Associated RPD Number(s): N/A
ATIP Number: A-2024-00593
ATIP Pages: N/A
DECISION
[1] MEMBER: These are the reasons for the decision in the claim of XXXX XXXX, a citizen of Russia who is claiming refugee protection pursuant to section 96 and section 97 of the Immigration and Refugee Protection Act.
ALLEGATIONS
[2] The following is a brief synopsis of the allegations put forth by the claimant in his Basis of Claim form. The claimant is a 40-year-old male who holds dual citizenship in Russia and Tajikistan. He alleges that he fears persecution at the hands of Russian authorities due to his political opinion on the war in Ukraine, his refusal to be conscripted to participate in the war, and his participation in protests against the war in Ukraine while in Canada. He does not support Russia in its war against Ukraine because Russia is killing innocent civilians and raping women. He stated that the Russian military came to his father’s house in Russia, where he had previously stayed, to ask for him but his father stated that he does not know where he was. He also stated during his oral testimony that some notices to appear were left for him at his workplace to report for military service, but he tore the notices and refused to appear because he does not support the war in Russia.
[3] The claimant stated that he does not support the war in Russia because he believes the war is not just unjustified, but that Russia is also killing civilians and committing other atrocities against civilians in Ukraine. The claimant further alleges that Russians from Tajikistan are overly targeted in the conscription exercise of the Russian authorities at the beginning of the war, but now, everybody is a target. The claimant also alleges that he will not be able to practice Islam should he return to Tajikistan, as he will be labelled an extremist. He stated that he will not be allowed to preach Islam’s orders and he would be required to trim his beard if he goes out in Tajikistan.
[4] The claimant came to Canada through the US in XXXX 2022. Since coming to Canada, he has participated in protests against the war in Russia — the war in Ukraine. I find that the claimant is a Convention refugee as he has established a serious possibility of persecution in Russia and Tajikistan for the reasons contained below.
[5] On identity. I find that the claimant’s identity as a national of Russia and Tajikistan is established on a balance of probabilities by his Russian and Tajikistan passports submitted to the Board.
Nexus
[6] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one (1) or more of the five (5) grounds, race, religion, nationality, membership of a particular social group, or political opinion. The persecution that the claimant alleges — that the claimant allegedly faces in Russia has only as a nexus to a Convention ground, that is political opinion. The persecution the claimant allegedly faces in Tajikistan has a nexus to the Convention ground of religion. Therefore, his claim is being assessed under section 96 of the IRPA and not under section 97.
Allegation of Persecution in Russia
[7] On credibility, the Board presumes claimants are telling the truth unless there is a valid reason to doubt it. However, this presumption does not apply to inferences speculations. I note that the claimant did not include some information he related in his oral testimony in the Basis of Claim form. In particular, I note that the information about the military dropping notices to appear at his workplace was not included in his Basis of Claim. The claimant stated that he is only providing more details in his oral testimony as against the brief summary provided when he made his claim.
[8] He stated that when he made his claim, he just came to Canada, had to use an interpreter, and all the stress impacted on his ability to provide further details. I do not accept the explanation of the claimant in this regard. I find that the claimant in this case has had opportunity to update his Basis of Claim form and he provided disclosures to the Board after submitting the Basis of Claim form. I find that the non-inclusion of the information does impact negatively on his credibility. I do not accept the allegation that notices were dropped at the claimant’s workplace in respect of the conscription for military service. However, I do not find that the non-provision of the information in his BOC goes to the root of his claim, considering other evidence provided by the claimant. Based on the presumption of truthfulness, I accept on a balance of probabilities that the claimant fled for Russia in order not to be conscripted to military service in the war in Ukraine, because he believes Ukraine is indiscriminate — because he believes that Russia is indiscriminately killing civilians in Ukraine and committing war crimes.
[9] I also accept that the claimant participated in protests against the war in Ukraine while in Canada, and that he has been labelled a traitor by his former friend due to the fact that the claimant fled Russia to Canada. I accept that the claimant will not continue to express his opposition to the war in Ukraine if he is removed to Russia, not because he does not want to express his political opinion, but because Russian authorities crack down on protesters and forcefully send them to the warfront.
[10] Apart from his testimony, the claimant also provided corroborating documentary evidence in support of his claim. He provided a chat conversation with a friend who now refer to him as a traitor because he left Russia for Canada rather than fight in the war. He also provided pictures of himself taken in Canada, showing him holding the flag of Ukraine along with other people. The claimant further provided pictures of himself praying in a mosque in Canada and of a plaque he received recognizing his participation in the Islamic community in Canada. I have no reason to doubt the genuineness of these documents, and I accept them as genuine. I thus place full weight on these documents.
Failure to Claim in the US
[11] The claimant entered the US in XXXX 2022 before coming to Canada. And he stated that he told the refugee officials at the US that he would be asking for refugee protection. He stated that he did not stay in the US because his intention was to come to Canada. He says that he does not want to live in the US because of the level of crimes and the fact that people walk with guns, and it is not peaceful — it is not as peaceful in the US as it is in Canada. I note the claimant entered Canada on XXXX XXXX, 2023. I accept the claimant’s explanation as reasonable. I thus do not to make any negative credibility finding in this regard.
CONCLUSION and Credibility
[12] Based on the claimant’s testimony and the documentary evidence mentioned above, I accept the allegation that the claimant has a subjective fear of persecution. I accept, rather, that the claimant has a subjective fear of persecution in Russia because of his political opinion.
Well-Founded Fear of Persecution
[13] To establish his status as a Convention refugee, the claimant has to show that there was a serious possibility that he will be persecuted if he moved to Russia. I find that the evidence presented in support of his allegations establishes a serious possibility of persecution for the claimants if he is forced to return to Russia. My reasons are as follows.
[14] The National Documentation Package at Tab 12.3 shows that political opinion against the authorities is dealt by Kremlin with an iron hand which is against international law. Tab 12.3 states that decades after Boris Yeltsin freed the last of Soviet-Arab political prisoners. The widespread detention of activists, regime opponents, and disfavoured minorities is once again being practiced under the leadership of President Vladimir Putin, since he first became president in 2000 and especially his formal return to the Kremlin in 2012. The Kremlin has engaged in a wide region crackdown on civil society, political opponents, critical voices, unpopular minorities, and anyone else it views unfavourable or as a threat.
[15] The reports at Tab 12.3 goes on to state that this persecution is only increasing. In its February 2015 lists, Memorial Human Rights Centre, one (1) of Russia’s oldest and largest human rights organizations, identified 46 political prisoners in the country. As of March 2019, however, its lists contained 236 individuals, including many in Russia-occupied Crimea. These numbers, however, reflect only cases that have been carefully reviewed and vetted, and thus conform to a rigorous definition of political prisoner. The true number is undoubtedly much higher. The same report continues to states, “some of these prisoners have been accused of crimes they simply did not commit – murder, sexual abuse, espionage, treason, or possession of drugs or weapons. The majority, however, are charged for engaging in activities that are clearly protected under international law. These latter cases are enabled by an ever-increasing array of law, specifically designed to criminalize acts of everyday life and, therefore, allow the authorities to arrest, detain, and imprison anyone they want.”
[16] A report by Human Rights Watch at Tab 2.18 of the NDP shows that Russia brutally cracks down on anti-war protesters, arresting them and subjecting them to torture and inhuman and degrading treatment. The claimant in this case not only holds a political opinion against Russia on the war in Ukraine, but he has also participated in protests against the war while in Canada. This, coupled with the knowledge of his flight to Canada and the (inaudible) given to him by his friends, heightens his fear of persecution if he returns to Canada (sic).
[17] The objective evidence establishes that political opinion against the government in Russia, whether real or imputed, is seen as dissent and punished. It also establishes that anyone trying to evade the mandatory military call up is then criminally tried. The objective evidence at Tab 8.2 further shows that punishment for evading criminal service in Russia is deprivation of liberty for up to 10 years. The objective evidence before me also shows that ethnic minorities in Russia, such as Russians from Tajikistan, are more likely to be mobilized for military service in the war. The claimant, who is 40 years of age, never served in the military, in the Russian military, and as such is a good candidate to become conscripted into military service. In this case, the claimant is not a conscientious objector to military service as its objection is not a global objection to war, but to the unprovoked killing of civilians and other atrocities being committed by Russia in the war in Ukraine. It is on these ethical grounds that the objection of the claimant of the war is based.
[18] The view that the — view of the claimant is that Russia is committing war crimes in Ukraine by the indiscriminate murder and raping of women. It is also noted in the documentary evidence before me, particularly in the news release by Global Affairs Canada submitted by the claimant. The same documents also stated that — stated the view that Russia has committed war crimes in Ukraine.
[19] Excuse me. I say that again.
[20] The same document also stated that the view that Russia has committed war crimes in Ukraine was confirmed in September 2022 by the United Nations Human Rights Council Commission of Inquiry. I find that the reasons raised by the claimant in objecting to military service in the war between Russia and on Ukraine is based on ethical considerations for which a person who objects to military service may be offered protection. As highlighted in Lebedev v. Canada 2007 FC728. Therefore, based on all the evidence before me, I find that the claimant will face a serious possibility of persecution if he is forced to return to Russia. I find that the claimant’s fear are indeed well-founded.
[21] On state protection. I find that it will be objectively unreasonable for the claimant to seek the protection of the state in light of his particular circumstances. States are presumed to be capable of protecting their citizens, except in situations where the state is in complete breakdown. In this case, the claimant cannot be expected to seek the protection of the state since the government of Russia is the agent of harm. The authorities in Russia are in control of the entire territory of the country. And the treatment for anyone indulging in political dissent and refusing conscription service is the same throughout Russia. Therefore, I find that the presumption of state protection has been rebutted. And based on country condition documents, there is no state protection for the claimant in this country.
Internal Flight Alternative
[22] I have also considered whether there is a viable internal flight alternative for the claimant. Using the two (2) prong test developed by the Federal Courts of Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), 1992 1FC 706, which requires the RPD to consider on a balance of probabilities whether one (1), there is no serious possibility the claimant will be prosecuted or subjected to personal risk — subjected personally to a risk of section 97(1) harm in the proposed IFA, and two (2), whether the conditions in the proposed IFA are such that it will not be unreasonable in all the circumstances, including those particular to the claimant, for him to seek refugee there — to seek refuge there, rather.
[23] On the evidence before me, I find that there is a serious possibility of persecution for the claimant throughout Russia. There are no parts of the country where he will not face a serious possibility of persecution as the authorities in Russia are in control of the entire territory of the country. Therefore, for reasons similar to those in relation to state protection, I am satisfied that the claimant does not have a viable internal flight alternative in Russia.
Allegation of Persecution in Tajikistan
Credibility
[24] I find the claimant credible in respect of his claim in regards to the acts of discrimination he will face should he return to Tajikistan. The claimant testified in a straightforward manner and submitted documents depicting his practice of Islam. I have no reason not to believe his evidence. In particular, I find that the claimant is a Muslim who goes to the mosque, pray, and associates with other Muslims. I also accepts that the claimant believes that sharing his belief about Islam is an important aspect of his practice of Islam. I accept the allegation that he has been warned about preaching to people in Tajikistan. And as it stands, the risk of being arrested for not trimming his beard in Tajikistan.
[25] On well-founded fear of persecution. Based on the evidence before me, I find that the claimant has a well-founded fear of persecution on the basis of his religion as a Muslim in Tajikistan. I find that the act of discrimination rises to the level of persecution warranting protection. The claimant detailed in his narrative how he was introduced to Islam, his belief that the proper practice of Islam is tied to receiving God’s blessings and how (inaudible) to preach to other — to others in Tajikistan about Islam. He also stated that he was threatened with jail time by the police and was warned about his frequent activities in Tajikistan in XXXX 2020 and narrated how this prompted him to return to Russia.
[26] In his oral testimony, he stated that that the government has restricted the attendance at mosques to the age of 40, whereas the proper practice of Islam requires teaching children about Islam from the time they are born. He also stated that the government will not allow people to grow their beards in Tajikistan. The essence of the claimant’s allegation against Tajikistan is that the discrimination he faces on his religious practice are persecutory. A significant part of this aspect of his claim relates to his inability to preach about Islam to others. The claimant believes that preaching to others is an integral part of his religion, which has brought blessings to him personally.
Nature of the Legal Regime Regarding the Practice of Islam in Tajikistan
[27] The claimant states that he does not wish to return to Tajikistan because the government there has created a legal regime that suppresses the practice of Islam and the expression of one’s faith publicly. While the overwhelming majority of those in Tajikistan are Muslim, the evidence on file is that Tajikistan’s government, has strongly — sorry — has strongly authoritarian impulses and that it has taken steps to maintain total control of Muslim activity in the country. On this, I refer to the National Documentation Package for Tajikistan at Tab 12.3.
[28] The government of Tajikistan is not democratic. It generally restricts freedom of expression and security forces commit torture and abuse detainees with impunity. The specific steps that the government as taken to restrict the practice of Islam includes people — one (1), people must leave the mosque after prayer and only state-dictated summons are allowed to be read by state-appointed imams in state-permitted mosques. I refer to Tab 12.3 of the National Documentation Package for Tajikistan. Tab 12.3 also shows that restriction on religious education without state’s permission, including punishing offenders in this regard, is practiced in Tajikistan producing, distributing, and exporting items of a religious nature or religious literature which has not been censored by the government is banned. Punishments for disobedience includes fines and seizures of equipments used in contravening the law.
[29] Another step used to restrict the practice of Islam includes the ban on the wearing of hijabs and — excuse me. Another step is that the president has pronounced citizens should stop wearing a hijab and beards. Every society has limits towards its regards as acceptable behaviour. But in some countries, the norms of the society may be so constraining that they interferes with the exercise of human rights. Where these restrictions are entrenched in law and backed up by coercive action and penalties, the claimant who transgresses the conventions of their own land and perhaps at the same time, violating the law may be at risk of serious harm. The refugee system protects those in such situations who have a well-founded fear of persecution for a Convention reason. In this respect, persecution is the sustained or systemic failure of state protection in relation to one (1) of the core entitlements which have been recognized by the international community. I referred to the case of Canada Attorney General v. Ward, 1993 2SCR 689.
[30] The Board’s legal resource on such claims states that when dealing with the norms of other societies, the Refugee Protection Division should bear in mind that “an application of the Convention refugee definition involves measuring the claimant’s situation and any actions visited on the claimants against human rights standards which are international. It is not appropriate to simply refer to the notions of propriety favoured by the majority or the rulers in the claimant’s own land.” The central documents describing the rights to religious freedom as international law is the International Convention on Civil and Political Rights. Article 18 of the Covenants states that religious freedom includes the freedom not only to all religious beliefs and values, but also to manifest them. It states “everyone shall have the right to freedom of thought, conscience, and religion. The right (inaudible) include freedom to have or to adopt a religion or belief of his choice and freedom, either individually or in community with others and in public or private.” So, manifest his religion or believe in worship, observance, practice, and teaching.
[31] I refer to the UN General Assembly document on International Covenant on Civil and Political Rights, dated 16th December 1966. While inability to practice religion is often enforced or accompanied by other types of serious harm, the deprivation of religious freedom is serious and (inaudible). On this I refer to the book, the Law of Refugee Status, published by Cambridge University Press and authored by Utawaji Foster (ph) in 2014.
[32] As the US Court of Appeals for the Seventh Circuit stated, if a person is forbidden to practice his religion, the fact that he is not imprisoned, tortured, or banished, and is even allowed to attend school does not mean that he is not a victim of persecution. I referred to the case of Bokolades (ph), Seventh Circuit of the US Court of Appeal at 1997 at page 405. Restrictions on the public display of religion have been considered by the Federal Courts. The Immigration and Refugee Board has a legal resource on its website, which summarizes the Canadian law regarding refugee claims involving religious wars. The resource provides a summary of the Federal Court’s decisions regarding when such restrictions shall be considered persecutory and when the merely discriminatory instruments, where the (inaudible) cost does not rise to the level of persecution. I have relied on this resource in formulating this reason.
[33] Turning to the case law. Fosu v. Canada (Minister of Employment and Immigration), 1994 90 FCR 182 (ph) dealt with the well-founded fear of persecution of Jehovah’s Witnesses in Ghana, which had prohibited religious services and proselytizing. The case stands for the proposition that freedom of religion includes the freedom to “demonstrate one’s religion or belief in public, or in private by teaching practice, worship, and the performance of rights. It seems that the persecution of the practice of religion can take various forms, such as prohibiting — prohibition on worshipping in public or in private, giving or receiving religious instruction, or the implementation of serious discriminatory policies against persons on account of their practice of religion”.
[34] In Kaya v. Canada (Minister of Citizenship and Immigration), 2004 FC 445 (sic), that case considered that proposition in the context of Türkiye’s restrictions on wearing hijab in government institutions. It is held that a policy of secularism, supported by a ban on religious dress of any sort being worn in government buildings did not constitute, particularly (inaudible) in the circumstances. The courts in Kaya distinguished Fosu on the facts, finding that Mrs. Kaya was entitled to practice a religion in public in Türkiye and to wear her hijab in public. I find that the situation of this claimant in Tajikistan is more akin to this situation in Fosu and less like the situation in Kaya. This is because, unlike the more limited restrictions on wearing hijab in Türkiye, the restrictions in Tajikistan amounts to a blanket prohibition of sharing its religious beliefs with others in all public places. This restriction amounts to a limitation on the claimant’s rights. So, manifests is a religion or belief in practice, which infringe upon the claimant’s rights in Article 18 of the International Covenant on Civil and Political Rights.
[35] There are sceptical limits to Article 18 rights. Article 18(3) three of the Covenant specifies that “the freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety or the health or morals or the fundamental rights and freedoms of others”. Indeed, the government of Tajikistan justifies its restrictions on the practice of Islam as necessary to combat “extremism” and to respond to the group of ISIS and as a part of the war on terrorism, noting the security concerns that originates from (inaudible) Afghanistan. On this point, I refer to the reports of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on its mission to Tajikistan. The commentary from the UN Special Rapporteur on the promotion and protection of the rights of freedom of opinion and expression have generally concluded that such restrictions on expression are not justifiable limitations on freedom of religion pursuant to Article 18(3).
[36] For example, the aforementioned UN Special Rapporteur conducted a mission to Tajikistan. The resultant reports included the following conclusion. “The Special Rapporteur is deeply concerned by the allegations on the undue interference of government authorities in manifestation of religious expression and education. The Special Rapporteur is particularly disturbed by the allegations on the repression against individuals based on their (inaudible) adherence to certain religious groups”. The reports dismiss Tajikistan government’s attempted justification for these religious restrictions when calling upon the governments of Tajikistan “to recognize both in law and practice the expression of religious freedom as an individual rights, subject only to those restrictions that are permitted under international human rights law”.
[37] In sum, I conclude that the Tajikistan government is not respecting such rights and that it is restricting, and that these restrictions are not permissible once under the Covenant.
Effects of Legal Regime on Religious Restriction on the Claimant
[38] The restrictions on the claimant’s religious freedom have had a profound effect on him. In fact, the claimant testified that preaching and talking to others about Islam is so important as part of his religious practice that he chose to leave Tajikistan for Russia rather than leave without the ability to preach Islam. During the hearing — excuse me, please.
[39] When assessing whether there is an objective basis which supports the claimant, I have concluded that Tajikistan in fact has significant restrictions on the practice of Islam. I have concluded that these restrictions violates the claimant’s religious freedom as guaranteed in international human rights instruments. Finally, I have concluded that these restrictions on the claimant’s religious practice are of particular importance to the claimant and that the effect of the restrictions on the claimant of a sufficiently serious character so as to constitute persecution. The consequences of having to hide, change, or renounce his religious practice will significantly interfere with his dignity and security of his person. As such, I find that the claimant has a well-founded fear of persecution in Tajikistan.
State Protection in Tajikistan
[40] I find that it would be objectively unreasonable for the claimant to seek protection of the state in light of his particular circumstances. As stated previously, states are presumed to be capable of protecting their citizens, except in situations where the state is in full, complete breakdown. In this case, the claimant cannot be expected to seek the protection of the authorities in Tajikistan, as the government is the agent of harm. The authorities in Tajikistan are in control of the entire territory of the country, and the treatment for anyone indulging in banned or restricted religious activities is the same throughout the country. Therefore, I find that the presumption of state protection has been rebutted. And based on country condition documents, there is no state protection for the claimant in Tajikistan.
Internal Flight Alternative
[41] I have also considered whether a viable internal flight alternative exist for the claimant. Using the same two (2) prong test in Rasaratnam v. Canada, which requires the RPD to consider only balance of probabilities whether one (1), there is a serious possibility the claimant will be persecuted or subjected to — or subjected personally to a risk of section 97 harm in the proposed IFA, and two (2), the conditions in the proposed IFA are such that it will not be unreasonable in all the circumstances, including those particular to the claimant’s, for him to seek refuge there. On the evidence before me, I find that there is a serious possibility of persecution for him throughout Tajikistan. There are no parts of the country where he will not face a serious possibility of persecution, as the authorities in Tajikistan are in control of the entire territory of the country. Therefore, for reasons similar to those in relation to that of civil protection, I am satisfied that the claimant does not have a viable internal flight alternative in Tajikistan.
CONCLUSION
[42] Based on the above analysis, I conclude that the claimant is a Convention refugee as per section 97 of the IRPA. Accordingly, I accept his claim.
——— REASONS CONCLUDED ———