2023 RLLR 119

Citation: 2023 RLLR 119
Tribunal: Refugee Protection Division
Date of Decision: December 19, 2023
Panel: Hannah Gray
Counsel for the Claimant(s): N/A
Country: Russia
RPD Number: VC3-07126
Associated RPD Number(s): VC3 06774, VC3 06775
ATIP Number: A-2024-00593
ATIP Pages: N/A

DECISION

[1]         MEMBER:  So I have considered your testimonies today, and the other evidence in your case and I will now give you my decision orally.  And you will also receive a written version of this decision in the mail, okay?  So I will begin by telling you that my decision is a positive one (1), and I have accepted each of your claims, so congratulations.

[2]         CLAIMANT:  Thank you.

[3]         ASSOCIATE CLAIMANT:  Thank you very much.

[4]         MEMBER:  You’re very welcome.  I’m now going to read you the reasons for my decision, and they’re a bit lengthy, so just bear with me while I read those, okay?

[5]         Okay, this is the decision of the Refugee Protection Division in the claims of XXXX XXXX, and his spouse, XXXX XXXX, and their daughter, XXXX XXXX of Ukraine, who are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, the IRPA.  

[6]         At the hearing, the associate claimant, who is the mother of the minor claimant, acted as the designated representative for her daughter pursuant to subsection 167(2) of the Act, and Rule 20 of the Refugee Protection Division Rules.

[7]         I have considered and applied the Chairperson’s Guideline 4 on Gender Considerations in Proceedings Before the Immigration and Refugee Board, which offers guidance with respect to any gender-specific issues present in this claim.

[8]         I’ve also applied and considered the Chairperson’s Guidelines on child refugee claimants, procedural and evidentiary issues as it relates to the claim of the minor claimant.  

[9]         The claimants were self-represented for their hearing.

DETERMINATION

[10]      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.  I also find that the principal claimant is a Convention refugee pursuant to section 96 of the IRPA based on his well-founded fear of persecution in Russia.

ALLEGATIONS

[11]      The specifics of the claim are stated in the claimant’s Basis of Claim forms and narratives in evidence.  The claimants are a Ukrainian and Russian family from Ukraine.  The principal claimant is a 34-year old Russian male, along with his 34-year old Ukrainian wife and their seven-year old Ukrainian child.

[12]      The claimants lived in XXXX (ph), Kyiv, Ukraine.  In late XXXX 2022, the claimants fled from Ukraine to Switzerland after the Russian occupation of Ukraine as there was missiles and bombing of their country and their hometown, specifically.  

[13]      The claimants then came to Canada in XXXX 2022, and made their refugee claim shortly after.  The principal claimant is politically opposed to Russia’s military campaign and operation in Ukraine and does not want to participate in any war activities if he were forced to return to Russia now.  The principal claimant moved from Russia to Ukraine in 2006 to study and has not been back to Russia since 2013.  He received his Ukrainian permanent residency in 2014, and the principal claimant and associate claimant were married in 2015.

[14]      The principal claimant’s passport expires — Russian passport expires in 2025, and he does not want to approach the Russian government to renew it for the purposes of applying for a permanent residency in Canada.

[15]      Okay, I will now assess whether there’s any possibility for article 1(e) exclusion for the principal claimant regarding his permanent resident status in Ukraine.  An article 1(e) exclusion is whether the principal claimant should be excluded from refugee protection due to his permanent residency in Ukraine.  The principal claimant provided his permanent resident permit for Ukraine in evidence.  Pursuant to article 1(e), the Convention refugee definition does not apply to a person who’s recognized by the authorities of a country in which they have taken residence as having the rights and obligations which are attached to the possession of nationality of that country.  The test for determining whether article 1(e) applies is set out in Zhang and Zhang states that considering all relevant factors to the date of the hearing, does the claimant have status substantially similar to that of its nationals in the third country.  If the answer is yes, the claimant is excluded; if the answer is no, then the next question is whether the claimant previously had such status and lost it or had access to such status and failed to acquire it.  If the answer is no, the claimant is not excluded under article 1(e), and if the answer is yes, the RPD must consider on balanced factors — various factors.  These include, but are not limited, to the reason for the loss, which is voluntary or involuntary, whether the claimant could return to the third country, the risk the claimant would face in their home country, and Canada’s international obligations, and any other relevant facts.

[16]      I find that the claimant had status in Ukraine substantially similar to that of Ukrainian nationals at the time of the hearing.  However, in assessing whether an individual has status substantially similar to that of nationals of a third country, the jurisprudence as how a number of basic rights that are associated with nationality, including the right to return to the country of residence, the right to work freely without restrictions, the right to study, and full access to social services.  The status should not be a temporary one (1) that must be renewed, and which may be cancelled.  The claimant’s permanent residence permit for Ukraine was issued in 2014, as he was first in Ukraine — as he moved to Ukraine to study in 2006 and lived with his Ukrainian grandmother.  The claimant testified that he initially went to Ukraine to study and then met his now wife, who is the associate claimant, and he has not returned to Russia since 2013.  He further testified that as a Russian in Ukraine he’s not able to acquire Ukrainian citizenship as he would first have to denounce his Russian citizenship.  And Russia does currently not allow any Russians in Ukraine to denounce their citizenship.  With that said, I do find that the status or the permanent resident status afforded to the principal claimant did allow him the rights that are substantially similar to those held by nationals of Ukraine.  As the claimant was able to travel freely, and he also had the right to obtain employment and experience access to education and other social services in Ukraine.

[17]      However, since the Russian invasion of Ukraine the situation has deteriorated, and it is not clear whether or not permanent residents of Ukraine who have Russian citizenship are able to travel freely in and out of the country.

[18]      Okay, so based on all the evidence before me, I do find that permanent residents of Ukraine in the past did have rights substantially similar to nationals.  That being said, the purpose of article 1(e) is to exclude individuals who do not require protection because they have some form of surrogate protection in another safe country where they enjoy substantially the same rights and obligations as nationals of that country.  And while there has been some disagreement in the Federal Court as to whether any risk in the 1(e) country should be examined by the Refugee Protection Division, and whether it should be done at the Pre-Removal Risk Assessment stage, the Refugee Appeal Division decision MB800025 was identified as a jurisprudential guide that states that the preferred interpretation of the Convention is that allegations of risk in any country of residence are to be taken into consideration in the analysis of whether a refugee claimant is excluded from refugee protection under article 1(e).  The RAD noted that despite some divergence, the court has consistently endorsed the approach of the RPD and RAD members in assessing the risk in the article 1(e) country.  The reasoning being that people who face persecution or serious harm in their country of residence cannot be said to enjoy surrogate protection, as is the case in this claim.

[19]      Also, the object and purpose of the Convention in article 1(e) require decision-makers to consider any risk raised by a claimant in their country of residence before they can be excluded from refugee protection.  This framework respects Canada’s international obligations that flow from article 1(e).  Therefore, I have adopted this framework and assessed the risks to the principal claimant in Ukraine.

[20]      The principal claimant testified that he’s a Russian citizen and would not be allowed to re-enter Ukraine using his Russian passport at this time due to the ongoing Russian invasion of Ukraine which began in February 2022.  He testified that even if he were somehow able to re-enter Ukraine, he would face harm as a Russian citizen who would be perceived as being pro-Russian, and he would also face a risk of harm from the ongoing bombings and missiles in Ukraine now.

[21]      Therefore, based on the claimant’s testimony, and the objective evidence which will be assessed below, I find that he has established a nexus to the Convention on the grounds of his imputed or actual political opinion as a Russian in Ukraine if he were to return to Ukraine now.  I also considered that the claimant would face a risk in Ukraine as someone who could be forced into conscription by the Ukrainian military.

[22]      According to the National Documentation Package for Ukraine, at NDP item 2.2, an Amnesty International Report states that members of far right groups target marginalized groups with harassment, intimidation, and violence, and often with total impunity.  

[23]      NDP article — item 1.27 is article for a report by the Organization for Security and Cooperation in Europe which state that there are numerous reports of individuals perceived as being pro-Russian supporters who are mistreated and beaten by police, volunteer defence force members and others in territory controlled by the Government of Ukraine.  

The mistreatment, carried out by police officers, members of the territorial defence or civilians, usually consists of such individuals being duct taped to electricity poles or trees, partially or fully stripped, beaten, including with sticks and rods, and sprayed with paint or having the word marauder written on their body or clothes. 

The Organization for Security and Cooperation in Europe has documented more than 45 such cases.

[24]      But that was as of June 2022, and the number is most likely higher at this point in time.

[25]      Based on the totality of the evidence before me, I find the principal claimant has established a subjective fear of persecution that — and it objectively — and he has established that his subjective fear is objectively well-founded.  And I find the principal claimant would find a risk of persecution in Ukraine based on his imputed or actual political opinion if he were to return now as a Russian citizen.

ANALYSIS

Identity

[26]      I am satisfied with the personal and national identity of the principal claimant as a citizen of Russia which is established by his testimony and the copies of his passport in evidence.  I’m also satisfied with the personal and national identities of the associate claimant and minor claimant as citizens of Ukraine which is established by the associate claimant’s testimony and the copy of their passports in evidence.

Credibility

[27]      When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true unless there’s reason to doubt their truthfulness.  In this case, 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 the claimants’ testimonies and the other evidence in this case.  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 claims.

[28]      I find the claimants provided ample details to expand upon their allegations, and they also provided a great deal of evidence prior to the hearing, which included a number of identity documents as well as their birth-certificates and newspaper articles, and they also including, during the hearing, social media posts that the principal claimant wrote on both Facebook and Instagram that he submitted into evidence during the hearing.

[29]      Given the claimants’ careful testimonies, I find they have established on a balance of probabilities, the facts alleged in their claims.  Including that the claimants are a mixed Russian/Ukrainian family, and they fear a risk of harm in both Russia, due to their political opinion or imputed political opinion, as well as in Ukraine due to the ongoing war.

[30]      In sum, I find the claimants to be credible witnesses and, therefore, believe what they have alleged in support of their claims.

Nexus

[31]      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 establishing nexus to the Convention for the principal claimant on the ground of his imputed or actual political opinion as a Russian who has publicly shared his anti-Russian views with his community both on social media as well as in person, or on the phone.  Furthermore, the associate claimant and minor claimant have established a nexus to the Convention as they are members of a particular social group, as women or girls who face a risk of gender-based violence in a situation of war in Ukraine.  

[32]      Based on the aforementioned evidence, I will assess their claims under section 96.

Well-Founded Fear of Persecution and Risk of Harm for the Principal Claimant in Russia

[33]      The principal claimant testified that he will be arrested and harmed if he returns to Russia  now as he will be perceived as a foreign agent or a spy as he lived in Ukraine since 2006 and married a Ukrainian.  He further testified that he has since the war began he has shared his political views speaking out against the Russian Regime on social media as well as the family members in Russia who strongly disagree with his perspective.  The principal claimant fears a risk to his life due to his actual or imputed political opinion in Russia.  

[34]      According to the National Documentation Package at item 2.23 of the NDP, an Austrian Red Cross Report from May 2022, states that, on the 7^th of April 2022, they published an article which deals with the prosecution of anti-war dissidents in Russia.  This report notes the following.  The authorities are exerting unprecedented pressure on dissenters.  There are mass detentions and protest participants are being threatened with criminal prosecution for participating in activities of extremist organizations.  The details of criminal cases against those opposing the war are not always known but their overall demeanour and the identities of those persecuted suggests the authorities are using the war as an excuse to crush dissent and totally cleanse civil society.  Despite the numerous instances of violence perpetrated by representatives of the authorities who unjustifiably detain people at demonstrations, not a single criminal court case has been filed in response to these acts.  Nonetheless, criminal proceedings can taint people against protestors for violence against police officers.  Experience has shown that unbiased investigations and due process in such cases are not upheld in Russia.  On the contrary, judicial proceedings are characterized by a blatant disregard for procedural norms and evidence for the defence.  Penalties are disproportionate even for formal charges.

[35]      According to the Russian NDP at item 2.26, it states that media and internet providers or social networks which make information about the conflict in Ukraine accessible to the Russian public, are threatened with criminal prosecution and asked to remove the information.  Furthermore, the principal claimant stated that he would be refused — that he could be forced to be conscripted into the Russian military if he were to return to Russia now.  

[36]      According to NDP item 8.1, persons refusing to take part in the hostilities in Ukraine, as well as their family members, could face persecution by the authorities.  Persons persecuted by law enforcement and convicted prisoners were also reported to be among the involuntary recruits.  Human Rights activists reported that interned men who refused their deployment to Ukraine were threatened with contrived criminal proceedings.  

[37]      In sum, based on all the evidence before me, I find the principal claimant has established that he would face a serious risk to his life if he were to return to Russia now as a Ukrainian permanent resident who lived in Ukraine for many years.  His fear is indeed well-founded.

Well-Founded Fear of Persecution and Risk of Harm in Ukraine

[38]      I also find the associate and minor claimants have established a well-founded fear of persecution in Ukraine based on their actual or imputed political opinion.  As well as they could face persecution in Ukraine due to the ongoing war and a particular risk if they’re women or girls.

[39]      The National Documentation Package for Ukraine which includes a U.S. Department of State Report at item 2.1 indicates that in Russian controlled areas of Ukraine, Russian-led forces have engaged in unlawful or widespread civilian harm, and forced disappearances, or abductions, and torture or physical abuses of punishment.  The report also states that in these areas there are significant human rights issues including arbitrary arrests, political prisoners, serious restriction on free expression, and substantial interference with freedom of assembly and religion.  And the associate claimant and the minor claimant could be perceived as being pro-Russian due to their membership in a particular social group as family members of the principal claimant.

[40]      NDP item 1.6 for Ukraine states that since the beginning of Russia’s full-scale invasion of Ukraine the ACLED records nearly 40,000 political violence events across the country.  Three-quarters of these events are shelling, artillery and missile strikes, mostly effecting the north-eastern, eastern, and southern regions of Ukraine. 

[41]      Meanwhile the long range strikes, including those deliberately targeting civilian infrastructure which pose a permanent threat and continue to induce extreme hardship for communities who are farther afield from the frontline.

[42]      Amnesty International Reports at item 1.7 of the NDP for Ukraine that according to the U.N. High Commissioner for Refugees, or UNHCR, nearly one-third of Ukrainians have been displaced by the conflict and 6.2 million people remain displaced within Ukraine, and 7.8 million are estimated to be refugees in Europe.

[43]      Regarding any additional risk that the associate claimant and minor claimant may face as women or girls in Ukraine is corroborated in the NDP.  The objective evidence, in particular a rapid gender analysis by Care International and U.N. Women at NDP item 5.6 states that women constitute the majority of those displaced within and outside of the country.  And they face significantly increased safety and protection risks.  Incidents of gender-based violence, particularly domestic violence and conflict related sexual violence.  This report further delves into the challenges for women of all ages to access agent services in war torn areas of Eastern Ukraine, and many have fled and faced further hurdles in accessing safe shelters in the Western Region of the country.

[44]      Women and girls are also more at risk of conflict-based sexual assault.  And NDP item 5.2 states that there is increasing and concerning media reports on conflict related sexual violence emerging in Ukraine.

[45]      Based on the totality of the evidence before me, I find that the associate and minor claimant have established a well-founded fear of persecution in Ukraine due to their membership in a particular social group as women or girls, as well as their actual or imputed political opinion as they are in a family with a Russian citizen and, therefore, I find the claimants would face a serious forward-facing possibility of persecution if they were to return to Ukraine now.

State Protection and Internal Flight Alternative in Russia

[46]      In all refugee claims the state is presumed to be capable of protecting their citizens unless there is clear and convincing evidence to the contrary.  In this case, given that the government is an agent of persecution for the principal claimant in Russia, it appears objectively unreasonable for the principal claimant to seek the protection of the state.  Consequently, the presumption of state protection has been rebutted.  

[47]      With respect to an Internal Flight Alternative, or IFA, I do not find that the principal claimant could safely live in any other part of Russia given that the agent of persecution is the government, and he cannot be expected to hide from the state.

State Protection and Internal Flight Alternative in Ukraine for the Associate and Minor Claimant

[48]      I find there is clear and convincing evidence that the Ukrainian state is in a state of complete breakdown as a result of the ongoing large-scale Russian invasion and that for this reason the presumption of state protection has been rebutted.  State protection would not be available to the claimants if they were to return to Ukraine now and seek it.  Furthermore, in regard to the Internal Flight Alternative, the UNHCR at item 1.23 of the Ukrainian NDP states that it does not consider appropriate to deny international protection to Ukrainians and former habitual residents of Ukraine on the basis of an internal flight or relocation alternative.

[49]      Based on this evidence and considering the current state of events in Ukraine, I find there is no viable Internal Flight Alternative available for the claimants there.

CONCLUSION

[50]      For the reasons above, I determine that the claimants are Convention refugees pursuant to section 96 of the Act and I accept each of their claims.

[51]      Thank you for bearing with me through that lengthy set of reasons, and congratulations.

——— REASONS CONCLUDED ———