2023 RLLR 116
Citation: 2023 RLLR 116
Tribunal: Refugee Protection Division
Date of Decision: June 26, 2023
Panel: Hannah Gray
Counsel for the Claimant(s): Daniel Radin
Country: Ukraine
RPD Number: VC3-04003
Associated RPD Number(s): N/A
ATIP Number: A-2024-00593
ATIP Pages: N/A
DECISION
[1] MEMBER: Okay. Okay. This is the decision of the Refugee Protection Division, the RPD, in the claim of XXXX (sic) (ph) XXXX, the claimant, a citizen of Ukraine, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, the IRPA. In the claimant’s passport and birth certificate, it states her former name as XXXX XXXX. The claimant has since changed her name, and that is how she will be referred to throughout the reasons below, as the changed name.
[2] I have considered and applied the Chairperson’s Guideline 4, gender considerations in proceedings before the Immigration and Refugee Board. I have also considered and applied the Chairperson’s Guideline on sexual orientation and gender identity and expression and sex characteristics, due to the intersectionality of the claimant’s various identity factors.
DETERMINATION
[3] I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA, based on her well-founded fear of persecution in Ukraine.
ALLEGATIONS
[4] The specifics of the claim are stated in the claimant’s Basis of Claim form and narrative in evidence. The claimant is a 23 year old transgender woman from Kiev, Ukraine. She began to realize that she identified as being female around the year 2012. While in school, she saw a classmate of hers being physically assaulted by homophobic classmates. The claimant comes from a wealthy and influential family in Ukraine. The claimant’s families (sic) did not accept their gender identity, and tried to masculine — masculinize the claimant throughout her — throughout her youth.
[5] In 2016, the claimant tried to run away from her parents to Poland, but was intercepted by the Ukrainian authorities. In 2017, the claimant was sent to China for studies, and to expand her family’s business in an attempt to exert control over the claimant. The claimant’s parents cut off financial support when the claimant tried to mention their gender identity to their parents. In 2020, the claimant attempted to apply for U.N. refugee status in Thailand during the Covid pandemic, but was told it was not possible as they were from Ukraine. In XXXX 2021, the claimant experienced XXXX XXXX and XXXX, as she became more certain of her gender identity as a transgender — transgendered person. The claimant came to Canada on a CUAET visa from Thailand in XXXX 2022. Since her arrival, the claimant has committed to a transition plan which includes XXXX XXXX, XXXX XXXX, and XXXX XXXX XXXX, which she has since began.
[6] The claimant fears returning to Ukraine and being harmed by her family, or due to the rampant homophobia by general society, or due to the ongoing war in Ukraine due to the Russian invasion that began in late February 2022.
ANALYSIS
Identity
[7] I am satisfied with the identity of the claimant as a citizen of Ukraine, which is established by her testimony, as well as the copy of her passport with a Canadian visa in evidence that has her former name on it.
Credibility
[8] 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 claimant. She testified in a straightforward, forthright, detailed, and candid manner, and there were no material inconsistencies, omissions, or contradictions between the claimant’s testimony and the other evidence in this case. She did not exaggerate or tailor her evidence, and in summary, her testimony was consistent with the other evidence on the central aspects of her claim.
[9] I find the claimant provided ample details to expand upon her allegations, and she also provided evidence in Exhibit 4, which included her internal passport with her previous name, her birth certificate which also had her previous name on it, the XXXX XXXX document, the letter from XXXX organization from Ukraine, medical documents from XXXX XXXX XXXX XXXX (ph) in Canada, medical documents from XXXX XXXX XXXX, letter from her friend XXXX XXXX XXXX (ph), a letter from XXXX XXXX XXXX XXXX (ph) which is the claimant’s partner, a letter from XXXX XXXX (ph), a letter from XXXX XXXX (ph), and a letter from XXXX XXXX (ph), as well as educational documents, and country condition articles.
[10] I have no reason to doubt the genuineness of these documents, and since these documents relate to the claimant’s relationships and experiences, in both Ukraine and Canada, and the risks she will face if she were to return to Ukraine now, I place significant weight on these documents to support her claim. The claimant also testified that her partner, XXXX XXXX XXXX XXXX, who also identified as a transgender woman, would be available as a witness if need be. The claimant’s partner provided a letter of support, which is found in Exhibit 4. As I found the claimant to be credible, overall, I found it unnecessary to call her partner as a witness. Given the claimant’s careful testimony and supporting documents, I find that she has established on a balance of probabilities, the facts alleged in her claim. Including that the claimant is a transgender woman in a relationship with another transgender woman here in Canada, and that she faced ongoing discrimination amounting to persecution in Ukraine by her family and by society in general. Therefore, I accept the subjective fear she has of returning to Ukraine now, due to her gender identity, as well as the ongoing war in Ukraine.
Nexus
[11] 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. I find that the persecution the claimant faces has a nexus to one (1) of the five (5) Convention grounds. That of membership in a particular social group, as a member of the LGBTQI+ community, and therefore, this claim will be assessed under section 96 of the Act.
Well-founded Fear of Persecution and Risk of Harm
[12] I find the claimant has established a well-founded fear of persecution based on her gender identity. The claimant testified that she experienced threats and attacks — sorry, threats of violence due to her gender identity while in Ukraine from her family, as well as from society in general. She also witnessed attacks on other people who are part of the LGBTIQ+ community. The objective evidence supports the claimant’s fears of returning to Ukraine.
[13] The US Department of State report at NDP Item 2.1 in the National Documentation Package for Ukraine, indicates that a significant issue in the country are crimes targeting lesbian, gay, bisexual, transgender, queer, or intersex persons. The report states that “There was societal violence against LGBTQI+ persons often perpetrated by members of violent radical groups, and authorities often did not adequately investigate these cases or hold perpetrators to account.” This report also describes how events in the LGBTIQ — sorry, LGBTQI+ community were regularly disrupted by members of violent radical groups, and how the police did not provide adequate protection for these attacks. Furthermore, this report states that “Law enforcement at times condoned or perpetrated violence against members of the LGBTQI+ community,” and that public figures sometimes made comments condoning violence against this community.
[14] Excerpts from the NDP at Item 6.2 and 6.3 and 6.4 state that, in recent years, there was not a single LGBTQI+ rally in Ukraine that was not a target of attacks by ultrarightist (sic) and conservative organizations. The right to respect of privacy and family life states that, the LGBTQI+ people in Ukraine have no legal means to register marriage or partnership. There are also no legal means to obtain custody, the way heterosexual people can. This further states that LGBTQI+ people often become subject to discrimination, or fired because of their gender identity and sexual orientation. Lesbian, bisexual, and transgender women often become victims of sexual harassment at work, and in Ukraine, homophobic and transphobic hate crimes are not investigated by law enforcement agencies. At best, they are classified as mere hooliganism.
[15] Based on the totality of the evidence before me, I find that the claimant has established a well-founded fear of persecution if she were to return to Ukraine, by reason of the risks she faces due to her gender identity. Given the country conditions, I find the claimant has established a serious forward-looking risk if she were to return now.
State Protection
[16] 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. To rebut 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.
[17] I have considered whether state protection would be available to the claimant, and I find that there is no adequate state protection available to her in her circumstances. In making that finding, I have considered the country conditions outlined previously, that describe not only a lack of protection and investigation into crimes against the LGBT — LGBTQI+ community, but also that police are sometimes perpetrators of violence against this community. NDP Item 6.5 states that the provisions of the Criminal Code that should protect from incitement of hostility, discrimination, or violence are woefully inadequate. Rather than being used to protect minorities, their ambiguity allows their abusive application to silence critical voices. This is in clear violation of international standards on freedom of expression and equality, and underscores the importance of wholesale reform.
[18] In light of the country condition evidence regarding the availability of state protection to those who are similarly situated, I find the claimant’s efforts in this regard were reasonable, and that on a balance of probabilities, the state will not afford her adequate protection. As a result, I find the claimant has rebutted the presumption of state protection.
[19] Internal Flight Alternative or IFA
[20] I have also considered whether the claimant would have a viable internal flight alternative available to her, and I find that she does not. I find there is nowhere in Ukraine where the conditions would significantly — would be significantly better for her as a transgender woman. The country condition documents support the claimant’s — support the claimant’s allegations, and suggest that the situation in the urban areas may even be worse for sexual minorities, and I find the claimant would face a serious possibility of persecution throughout Ukraine, and a risk of harm from the right wing nationalist groups, as well as society in general.
[21] In addition, given the ongoing crisis in Ukraine related to the Russian invasion that is affecting the entire country, I find that it would be unreasonable for the claimant in these circumstances to try to seek refuge elsewhere in Ukraine, and this is reflected in the most recent UNHCR report from March 2022 on the returns to Ukraine, found at NDP Item 1.23. That describes the situation in Ukraine as volatile and uncertain, noting hundreds of civilian deaths which have already been reported, and that was as of over a year ago. The UNHCR report calls on states to suspend the return of nationals to the country. As such, I find the claimant does not have a viable internal flight alternative available to her throughout Ukraine.
CONCLUSION
[22] For the foregoing reasons, I find the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act, and I therefore accept her claim. That is it for today. Thank you for sharing your experiences with me.
——— REASONS CONCLUDED ———