2023 RLLR 115

Citation: 2023 RLLR 115
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2023
Panel: David Jones
Counsel for the Claimant(s): Idorenyin E. Amana
Country: Russia
RPD Number: VC3-03985
Associated RPD Number(s): N/A
ATIP Number: A-2024-00593
ATIP Pages: N/A

DECISION

[1]         MEMBER: We are now back on the record. So this is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada for XXXX XXXX, who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. 

ALLEGATIONS

[2]         The claimant fears persecution, including a risk to his life, if he were to return to Russia because of his opposition to the Russian invasion and his opposition to serving in the Russian military. The claimant also fears persecution because he will be perceived as being pro-Russian due to his Russian background if he were to return to Ukraine. The claimant is from Moscow, Russia. The claimant’s parents were both born in the territory that is now Ukraine. The claimants parents live in Russia currently. The claimants father has Russian citizenship and the claimant’s mother has Ukrainian and Russian citizenship. On XXXX XXXX, 2021, the claimant came to Canada for school and to pursue his XXXX ambitions. On February 24th, 2022, Russia began the full scale invasion of Ukraine. The claimant and his family have opposed the Russian invasion. The claimant did make a posting in support of Ukraine online on his XXXX page, and that has since been removed because of fears of what they would do to his parents. Since being in Canada, the claimant has received a summons from the Russian military to attend an enlistment office for a medical exam. In November 2022, the claimant applied for refugee protection.

DETERMINATION

[3]         I find that the claimant is a Convention refugee. 

ANALYSIS 

Identity

[4]         The claimant’s identity as a citizen of Russia has been established on a balance of probabilities by his testimony, the designated representative’s testimony, and his Russian passport, which is located at Exhibit 1. I also find that Ukraine is a country of reference for the claimant. With respect to the nationality of children whose parents are Ukrainian, according to Article 14 of the citizenship laws of Ukraine, which are found in Item 3.2 of the National Documentation Package for Ukraine, which is found at Exhibit 3.2, it states that, “A child who is a foreigner and one (1) of whose parents is a citizen of Ukraine and the other is a foreigner shall be registered as a citizen of Ukraine upon application of the parent being a citizen of Ukraine.” This is the claimant’s situation, as his mother is a Ukrainian citizen and his father’ is a Russian citizen. As such, it appears that the claimant has access to citizenship in Ukraine through his mother. 

[5]         The next question is whether the acquisition of another citizenship is within the claimant’s control, where only mere formalities are required such as the completion of paperwork. That appears to be the case here for the claimant. While a report on citizenship at Item 3.8 states that administrative obstacles can delay or prevent people from exercising their right to citizenship, and the report lists the main obstacles, none of those obstacles apply to the claimant’s situation. The claimant and the designated representative testified that they were not aware about the process for obtaining Ukrainian citizenship. I note that there is no evidence to indicate that the claimant’s acquisition of Ukrainian citizenship would require more than the completion of paperwork. As such, I find that both Russia and Ukraine are countries of reference for the claimant, and he needs to establish his claim against both countries. 

Nexus 

[6]         The claimant opposes the Russian invasion and in part fears persecution in Russia because of his political opinion. The claimant also fears that he will be perceived as pro-Russian in Ukraine due to his Russian background. For both countries of reference then, these allegations form a nexus to a Convention ground for the claimant based on his political opinion, both actual and imputed. The claimant further fears persecution due to his opposition to conscription in Russia and also being forced into the war in Ukraine. 

Credibility

[7]         I find that the claimant and the designated representative were both credible witnesses. In making these findings, 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. In this regard, the claimant, who was 17, testified in a straightforward manner and was able to answer questions directly. The claimant testified about how he was born in Moscow and moved to Ukraine to live for two (2) years. He returned to Moscow and lived there until he came to Canada in XXXX 2021. The claimant only once returned to Moscow, which was in the XXXX of 2021. The claimant testified about his fears of being forced to serve in the Russian armed forces and that he had already received a letter summoning him for a medical exam for the army. The claimant testified about his opposition to the invasion of Ukraine, how he has family members in Ukraine and how he views it as his homeland. The claimant also testified about how he is unable to express his opposition to the invasion, as those who oppose the war are being jailed in Russia. The claimant testified that even while he is here in Canada, he fears speaking out about the conflict because of the risks that his parents might face in Russia. 

[8]         With respect to Ukraine, the claimant testified about his concerns if he were to return to the country due to his Russian background and how he’d be perceived as being pro-Russian. The claimant’s designated representative expanded on the claimant’s risks in Ukraine, noting that Ukraine is also sending conscripts to the war. The designated representative confirmed the testimony of the claimant and also testified about how there would be no safe location in either country for the claimant to return to. The claimant provided documents to support his claim, which are found in Exhibit 4. These documents include a Russian military service call up letter requiring the claimant to report to a military office in Moscow. The reverse of the letter indicates that a citizen who fails to appear without good reason is liable under the laws of the Russian Federation. The letter provides lists of good reasons, and those include disease or injury, or if a family members in grave health or other circumstances beyond the control of the citizen, none of which appear to apply to the claimant. I have no reason to doubt the genuineness of this document, and I give it significant weight to support his claim. 

[9]         Given the credible testimony of the claimant and his designated representative, along with the supporting documentation, I find on a balance of probabilities that the claimant has established the facts alleged in his claim, including that the claimant opposes the Russian invasion of Ukraine and also serving in the Russian military. I also make no negative credibility findings due to the delay in applying for refugee protection. The claimant had a student visa in Canada, and the representative explained that when the claimant’s mother heard that conscripts were being sent to Ukraine, the family made the decision for the claimant to apply for refugee protection. I also note this is a sur place claim, as the country conditions had changed significantly after the claimant came to Canada. As such, I accept the explanation for the delay, especially given the stars the claimant had in Canada at the time. As the claimant is a citizen of both Russia and Ukraine, he must establish his claim against each of these countries. 

Well-Founded Fear – Russia

[10]      The country condition documents for Russia in the National Documentation Package, which are found in Exhibit 3.1, support the claimant’s fears for returning to Russia. The US  Department of State report at Item 2.1 describes Russia as an authoritarian and political system dominated by President Vladimir Putin, and indicates numerous significant human rights issues in the country, including extrajudicial killings, enforced disappearances by or on behalf of government authorities, pervasive torture by government law enforcement officers that sometimes result in death, harsh and life-threatening conditions in prisons, arbitrary arrest and detention, political and religious prisoners and detainees, politically motivated reprisals against individuals located outside the country, severe arbitrary interference with privacy, severe suppression of freedom of expression and media, including violence against journalists and the use of anti-extremism and other laws to prosecute peaceful dissent, severe restrictions on internet freedom, severe suppression of the freedom of peaceful assembly, and severe suppression of freedom of association. The report also states that the government failed to take adequate steps to identify, investigate, prosecute or punish most officials who committed abuses and engaged in corruption, resulting in a claimant of impunity.

[11]      With respect to the full-scale invasion of Ukraine, the report indicates that Russian armed forces have committed numerous war crimes and other atrocities and abuses, including executions, torture, rape, indiscriminate attacks and attacks that have deliberately targeted civilians and civilian infrastructure which constitute war crimes. The report further notes that authorities have conducted politically motivated arrests, detentions, trials, and torture of Ukrainian citizens in Russia. Oppression of opposition to the invasion of Ukraine is also reflected in the 2023 Freedom House report found at Item 2.5, that describes how excessive use of force, routine arrests, and harsh fines and prison sentences have discouraged unsanctioned protests in the country and how the pervasive, hyperpatriotic propaganda and political repression that has increased since Russian forces invaded Ukraine have prevented individuals from being able to freely express their political views. The report also notes how excessive use of force by police is widespread. 

[12]      A 2022 Human Rights Watch report at Item 2.18 focuses on the treatment of protesters to the Russian invasion of Ukraine. The report describes it as a brutal crackdown on those who disagree with the military offensive in Ukraine, and how thousands of peaceful protesters have been arrested and face excessive use of force by the police. With respect to the claimant’s fears of being forced into the Russian army, an EU report at Item 8.4 on the treatment of military deserters since February 2022 invasion of Ukraine describes how military conscription is for male citizens between 18 and 27 and they are subject to military service, and evading conscription is punishable by fines and imprisonment. I note that the claimant is 17 years old and has received a call up letter for his medical. The EU report also describes how it has been very difficult to obtain information on how Russia is currently treating those who are evading military service, in part due to censorship laws that went into effect on March 4th, 2022. Some media reports indicate that those who refused to sign contracts with the Russian armed forces are threatened with being found to be a deserter. The report also describes media reports for captured Russian soldiers who have spoken about the use of execution squads for deserters. Based on the totality of the evidence, I find the claimant has established a well-founded fear of persecution in Russia due to his political opinion and opposition to the Russian invasion and his opposition to participating in the Russian armed forces. 

[13]      I further find that given all the risks facing the claimant, including the persecution of opponents to the Russian invasion of Ukraine and the claimant’s call up to the Russian military, that the claimant faces a serious forward-facing possibility of persecution if he were to return to Russia. 

Well-Founded Fear – Ukraine

[14]      The country Condition documents for Ukraine in the National Documentation Package found in Exhibit 3.2 also support the claimant’s fears of returning to that country. As noted previously, the country condition documents indicate that Russia has committed significant war crimes against civilians in Ukraine. This is reflected in other parts of the National Documentation Package, including a UN report from March 2023 at Item 1.24 that states that Russian authorities have committed a wide range of violations of international human rights law and international humanitarian law in many regions of Ukraine. As for the claimant’s fears of being perceived as pro-Russian, in April 2022, Organization for Security and Cooperation in Europe report at Item 1.27 indicates that there are a large number of reports of mistreatment, acts of torture or inhumane and degrading treatment of people viewed as pro-Russian supporters carried out by the police, territorial defence forces, and civilians in Ukraine-controlled parts of the country. 

[15]      The report indicates that those people perceived as being pro-Russian have been physically assaulted and some have faced detention. For those detained, family members have reported that they have not been advised of where their relatives are being detained or their fate. With respect to detention in Ukraine, the US Department of State report at Item 2.1 lists a number of significant human rights issues, and those include cruel and inhumane or degrading treatment or punishment of detainees by law enforcement personnel, harsh and life-threatening prison conditions, arbitrary arrests or detention, as well as serious problems with the independence of the judiciary. Based on the totality of evidence, I find the claimant has established a well-founded fear of persecution in Ukraine due to his imputed political opinion as a perceived pro-Russian supporter due to his Russian background. I further find that, given all the risks facing the claimant, including the documented targeting of pro-Russian supporters by the territorial forces and the ongoing Russian invasion, that the claimant would face a serious forward-facing possibility of persecution if he were to return to Ukraine. 

State Protection and Internal Flight Alternative – Russia 

[16]      As for Russia, given the state is the agent of harm, I find that there is no state protection available to the claimant in the country. Further, given the Russian state’s capacity, I find that the claimant would face a serious possibility of persecution throughout Russia. Accordingly, I find that there is no internal flight alternative available to the claimant in the country. 

State Protection and Internal Flight Alternative – Ukraine

[17]      I have also considered whether adequate state protection is available for the claimant in Ukraine, and I find that there is none given the claimant faces a risk from state actors and the Ukrainian territorial forces as well as from the invading Russian army. I also considered whether the claimant would have a viable internal flight alternative available to him in Ukraine, and I find that he does not. I find that the ongoing crisis in Ukraine related to the Russian invasion is affecting the entire country, and it would be unreasonable for the claimant in these circumstances to try and seek refuge elsewhere in Ukraine. This is reflected in the March 2022 UNHCR report on returns to Ukraine found in Item 1.23 that describes the situation in Ukraine as volatile and uncertain. The report 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 internal flight or relocation alternative.” As such, I find the claimant does not have a viable internal flight alternative available to him in Ukraine. 

CONCLUSION

[18]      For the reasons above, I determine that the claimant is a Convention refugee pursuant to section 96 of the Act, and therefore the Board accepts his claim. Given I am granting protection under section 96 of the Act, I do not find it necessary to consider the claim under section 97. 

——— REASONS CONCLUDED ———