2023 RLLR 225
Citation: 2023 RLLR 225
Tribunal: Refugee Protection Division
Date of Decision: November 20, 2023
Panel: Hannah Gray
Counsel for the Claimant(s): Mustafa Ali Rashid
Country: Jordan
RPD Number: VC3-08085
Associated RPD Number(s): VC3-08086, VC3-08087, VC3-08088
ATIP Number: A-2024-01133
ATIP Pages: N/A
DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claims of XXXX (the principal claimant or PC) of Jordan and Ukraine and his wife, XXXX XXXX (the associate claimant or AC) of Jordan, and their son’s XXXX and XXXX XXXX (the minor claimants) of Jordan and Ukraine, who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “IRPA”).[1]
[2] At the hearing the PC, who is the father of the minor claimants, acted as the designated representative for his children, pursuant to subsection 167(2) of the Act and Rule 20 of the Refugee Protection Division Rules. These claims for refugee protection were heard jointly pursuant to Rule 55 of the RPD Rules. Each claim was decided on its own merits and separate decisions were made for each individual claimant.
[3] I have considered and applied the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board[2] which offers guidance with respect to gender specific issues present in this claim.
[4] I have also applied and considered the Chairperson’s Guidelines on Child Refugee Claimants: Procedural and Evidentiary Issues[3] as it relates to the claims of the minor claimants.
DETERMINATION
[5] I find that the claimants are Convention refugees, pursuant to s. 96 of the IRPA, based on their well-founded fear of persecution in Ukraine.
[6] I also find that the claimants are Convention refugees, pursuant to s. 96 of the IRPA, based on their well-founded fear of persecution in Jordan.
ALLEGATIONS
[7] The specifics of the claim are stated in the claimants Basis of Claim (BOC) form and narrative in evidence.[4]
[8] The claimants are a family of four. The PC is a 37-year-old man who was born in Ukraine to Jordanian parents and has citizenship in both Jordan and Ukraine. The AC is his 30-year-old wife, who is from Jordan. The minor claimants, age six and seven, were born in the Kingdom of Saudi Arabia. They have citizenship in both Ukraine and Jordan from their father. The minor claimants visited Jordan regularly however they were born and raised in KSA. Neither the associate claimant nor the minor claimants have ever been to Ukraine.
[9] The PC worked in the United Arab Emirates (UAE) from XXXX 2012 to XXXX 2013. He then began to work in the Kingdom of Saudi Arabia (KSA) from XXXX 2013 to XXXX 2022-06. The AC lived in KSA from 2015-09 to 2022-06.
[10] The AC’s father was physically abusive to the AC and her mother and sister, which led her parents to divorce in 2003. The AC’s father continued to harass and attack her, her sister and mother after the divorce.
[11] The PC and wife were married in XXXX 2014 without the consent of the AC’s estranged father. In 2015 the AC moved to KSA with PC and would return annually to visit family. Her father would always ask about her whereabouts and his threats intensified in 2021. The PC decided that the claimants should leave KSA and relocate to Ukraine where they would be safer from the AC’s father.
[12] The PC finished work in XXXX 2022 in KSA. They all returned to Jordan temporarily to renew son’s passport only to discover that Russia had invaded Ukraine. The PC had no choice but to return to KSA to look for another job and sponsorship but nothing manifested. They had concurrently applied for the CUAET and left for Canada as soon as the visa was obtained.
[13] According to the AC’s grandfather, her father is still looking for the claimants and warned her not to return to Jordan.
[14] The entered Canada in early XXXX 2022 and made their claimed in January 2023 as the situation in Ukraine intensified.
[15] They fear returning to Jordan and being harmed by the associate claimant’s father, the agent of harm in Jordan, or returning to Ukraine and being harmed or killed due to the ongoing war and persecution towards Ukrainian citizens, specifically women and children. Furthermore, the PC fears returning to Ukraine and being forcefully recruited into the military. He opposed forced conscription and fears that if he returns to Ukraine and does not join the military he will be perceived as being anti-national.
ANALYSIS
Identity and Countries of Reference
Status in Jordan for each of the claimants
[16] The claimants’ personal identities and identities as nationals of Jordan has been established by their sworn testimonies and the certified copies of their Jordanian passports in evidence in Exhibit 1.[5] Based on the evidence before me I find that Jordan is a country of reference for all of the claimants.
Status in Ukraine for each of the claimants
[17] The principal claimant and minor claimants’ personal identities and identities as nationals of Ukraine has been established by the PC’s sworn testimony and the certified copies of their Ukrainian passports in evidence in Exhibit 1.[6]
[18] The associate claimant is a citizen of Jordan and married to a Ukrainian citizen however she has never lived in or visited Ukraine. When the associate claimant was asked if she has taken any steps to obtain Ukrainian citizenship through her husband, the PC and AC testified that they visited the Ukrainian Embassy in Saudi Arabia to inquire about the AC’s ability to acquire Ukrainian citizenship from abroad. They were informed that the AC must move to Ukraine for five years to acquire citizenship through marriage.
[19] The NDP for Ukraine, states in an article on the Law of Ukraine on citizenship of UKR, at NPD Item 3.2 states,
Article 2. Principles of Ukrainian Legislation on Citizenship The Legislation of Ukraine on Citizenship is based on the following principles:
5) non-automatic acquisition of Ukrainian citizenship by a foreigner or a stateless person due to marriage with Ukrainian citizen or acquisition of Ukrainian citizenship by his/her spouse and nonautomatic termination of Ukrainian citizenship by any of the spouses due to termination of marriage or termination of Ukrainian citizenship by the other spouse.
…
Article 9. Admission to the Citizenship of Ukraine A foreigner or a stateless person can be admitted to the citizenship of Ukraine upon their applications. Requirements for admission to the citizenship of Ukraine shall be:
1) recognition and observance of the Constitution of Ukraine (254к/96-ВР) and Ukrainian laws;
2) submission of a declaration on absence of foreign citizenship (for stateless persons) or an obligation to terminate foreign citizenship (for foreigners).
3) continuous lawful residence in the territory of Ukraine during the last five years. This requirement shall not apply to the foreigners or stateless persons who have been married to a citizen of Ukraine for over two years, and to the foreigners or stateless persons who were married to a citizen of Ukraine for over two years and whose marriage has been terminated because of the latter’s death. The two-year period for being married to a citizen of Ukraine shall not apply to foreigners and stateless persons who were granted a permit for immigration in accordance with the clause 1 in part three of Article 4 of the Law of Ukraine On Immigration.
5) speaking the state language or understanding it to the extent sufficient for communication. This requirement shall not apply to physically handicapped persons (blind, deaf, dumb).
[20] Based on the objective evidence before me I find that if the associate claimant were to travel to Ukraine, she would have the ability to apply for citizenship in Ukraine based on her marriage to her husband, a citizen of Ukraine, for longer than two years, as they have been married since 2015. However, at the time of this hearing the AC has no immigration status in Ukraine and has never been to Ukraine. Other than inquiring at the Ukrainian embassy about her ability to acquire Ukrainian citizenship she has not taken any steps to obtain immigration status in Ukraine. Therefore, I will not assess possible exclusion under article 1E for the AC in Ukraine, however I do consider Ukraine to be a country of reference for the AC.
[21] Ukraine is therefore a country of reference for all the claimants.
Status in the Kingdom of Saudi Arabia (KSA) for the claimants
[22] The principal claimant had a work permit in the Kingdom of Saudi Arabia (KSA) from 2012 to 2022, and the AC was in KSA as a dependant of her husband, from 2015 to 2022. The minor claimants were born to Ukrainian and Jordanian parents in KSA. According to the National Documentation Package for the Kingdom of Saudi Arabia, it states that KSA does not grant citizenship to children born in the country whose parents are foreigners. The KSA also does not have a permanent residency status for foreigners, such that the claimants had or could obtain the rights and obligations attached to the possession of nationality in the KSA.[7] As such, I find, on a balance of probabilities, that the claimants all had temporary status in the KSA, and that the KSA does not constitute a country of reference in the present claims.
Credibility
[23] When a claimant swears to the truth of allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.[8] I find no reason to doubt the truthfulness of the claimants. The PC and AC testified in a straightforward, forthright, detailed, and candid manner. There were no material inconsistencies, omissions, or contradictions between their testimonies and the other evidence in this case that were not reasonably explained. They did not exaggerate or tailor their evidence. In summary, their testimonies were consistent with the other evidence on central aspects of their claims.
[24] I find that the claimants provided ample details to expand upon their allegations. They did not provide additional evidence other than the birth certificates for their Canadian born twins, however, given the claimants careful testimonies, I find that they have established, on a balance of probabilities, the facts alleged in their claims.
[25] I accept that the principal and associate claimants are a married couple who were married in Jordan and then moved to Saudi Arabia where the PC worked, where the two minor claimants were born. I also accept, on a balance of probabilities, that the associate claimant was abused continually by her father in Jordan throughout her life. Furthermore, I accept that as the claimants only had temporary status in KSA, and feared returning to Jordan, they planned to relocate to Ukraine in 2022. However, in late February 2022 the war began in Ukraine, as it was invaded by Russia. The claimants feared returning to Jordan or relocating to Ukraine due to the war and therefore came to Canada.
[26] I further find the PC has established, on a balance of probabilities, that he has not returned to Ukraine since 2011, and that his house in Ukraine has been visited by military recruitment agents. The PC testified that these draft agents have informed his mother’s friend, who resides at their house Ukraine, that the PC is being drafted for compulsory military service. The family friend informed the agents that he no longer lives in Ukraine. The PC testified that he would refuse to be drafted if he were to return to Ukraine as he does not agree with war and would not want to be involved. He testified that he fears that he will be perceived as being anti-national for evading the military draft if he returns to Ukraine now.
[27] The claimants testified that they left Jordan in XXXX 2015 a week or two after they were married, and moved to Saudia Arabia where the PC worked. They testified that they returned to Jordan a few times to visit their mothers, with their last visit in XXXX 2022. When they were asked if they faced any risk of harm during their re-availment to Jordan they testified that they moved from house to house while they were in Jordan and did not stay in one place, so that they could not be located by the AC’s father easily. I find this explanation to be reasonable and do not find that their re-availment to Jordan undermines their overall credibility with respect to the threats and harm they experienced in Jordan or their subjective fear of returning now.
[28] In sum, I find the claimants to be credible witnesses, and therefore believe what they have alleged in support of their claims.
Nexus
[29] 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”.
Principal Claimant in Jordan:
[30] The allegations established a nexus to the Convention for the principal claimant in Jordan on the ground of particular social group, regarding an honour crime, as a man who married his wife without the permission or attendance of his wife’s father and therefore, he has been threatened for dishonoring his wife’s father, the agent of harm.
Principal Claimant in Ukraine:
[31] The allegations established a nexus to the Convention for the principal claimant, on the ground of his imputed and actual political opinion in Ukraine, as he has evaded the military draft in Ukraine by living outside of Ukraine and would continue to evade the draft if he were to return to Ukraine and therefore could be perceived as being anti-national or pro-Russia.
Associate Claimant in Jordan:
[32] The allegations establish a nexus to the Convention for the associate claimant, on the ground of her membership in a particular social group as a woman facing a risk of gender-based violence in Jordan. In Jordan the AC, faced ongoing and escalating harm from her abusive father throughout her life. He then began to threaten to harm all of the claimants after the AC was married and had children.
Associate Claimant in Ukraine:
[33] The allegations establish a nexus to the Convention for the associate claimant, on the ground of her membership in a particular social group as a woman facing a risk of gender-based violence in a situation of war Ukraine.
Minor Claimant’s in Jordan:
[34] Furthermore, I find the minor claimants have established a nexus to the Convention due to their particular social group, as they are family members of the principal and associate claimant and would therefore face a risk of harm from the agent of harm, their grandfather, who has threatened all of the claimants.
Minor Claimant’s in Ukraine:
[35] I find the allegations establish a nexus to the Convention for the principal and minor claimants in Ukraine based on their nationalities as a Ukrainians who are being targeted by Russia.
[36] I will therefore assess all their claims under section 96.
Well-Founded Fear of Persecution and Risk of Harm in Jordan
[37] I find that the claimants have established a well-founded fear of persecution from the AC’s father, the agent of harm, in Jordan. The AC testified that the mental and physical abuse she experienced from her father was relentless and it intensified after her parents divorced in 2015. The AC testified to the burns and other injuries she endured, as well as the ongoing abuse her mother and sister experienced. When the AC married the PC they testified that they did not invite the AC’s father due to the abuse, despite the fact that it was customary to have the brides father give his permission for the marriage. After the wedding they received threats from the agent of harm, stating that the claimants dishonored him and brought shame to the family name.
[38] The US Department of State report on Jordan at Tab 2.1 of the Jordanian NDP, which can be found at Exhibit 3, indicates that violence against women is prevalent in Jordan and a lack of investigation of and accountability for gender-based violence is a significant human rights issue in the country. The objective evidence at Tab 5.12 of said NDP reports that Jordan has seen a rapid increase in the number of cases of violence against women and the official measures to combat this increase are still inadequate. The social reality is that women who are victim of gender-based violence stay silent because they know that the reporting will not help them. Tab 5.3 of the NDP reports that despite new legislation, domestic and sexual violence remains high and largely unreported and undocumented.
[39] A Response to Information Request or RIR in the Jordanian NDP at Tab 5.9 indicates that approximately 15 to 20 women and girls are killed every year in Jordan by male family members as a result of honour-based violence. Sources indicate that many incidents of honour-based violence go unreported, and communities prefer to handle these types of crimes in tribal arbitration to avoid public shame at the expense of the women involved. This RIR describes many different honour crimes perpetrated in the country for a variety of reasons, including an example of a woman who was killed by her brother simply because she had a phone that the family did not know about. Freedom House at Tab 2.4 goes on to describe the inherent discrimination against women in the legal system in Jordan, noting that due to the Sharia law system in place, women — women’s testimony is treated less than that of a man.
[40] The objective evidence also confirmed that family violence and revenge is widespread in Jordan. It records that the notions of clan and tribal law remains strong in Jordan. This is contained under NDP Item 5.10. The NDP state that tribal affiliations are inextricably tied with identity for many Jordanians, from the national to the village level.
[41] The associate claimant suffered years of abuse perpetrated by her father, the agent of harm. This abuse has been escalating in nature as described by the principal claimant in her narrative and testimony. The AC testified that the threats became worse and began to involve her husband when she married her husband in 2015 without notifying her father, or receiving his permission, which she testified could be perceived as an honour crime. When the AC had children, the threats again intensified and the agent of harm threatened to harm them as well. These threats continued after the claimants fled to Canada. The agent of harm wrote threatening notes to the claimants, which her grandfather showed the AC during a video call.
[42] Based on the evidence before me, including the country conditions and the claimant’s particular circumstances and experiences, I find that the claimants have established a well-founded fear of persecution in Jordan from the agent of harm.
Well-Founded Fear of Persecution and Risk of Harm in Ukraine
[43] The claimants testified that they fear going to Ukraine due to the Russian invasion and ensuing war. With respect to persons who flee their country of nationality due to war, the UNHCR Handbook provides the following guidance:
164. Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol….
165. However, foreign invasion or occupation of all or part of a country can result – and occasionally has resulted – in persecution for one or more of the reasons enumerated in the 1951 Convention. In such cases, refugee status will depend upon whether the applicant is able to show that he has a “well-founded fear of being persecuted” in the occupied territory and, in addition, upon whether or not he is able to avail himself of the protection of his government, or of a protecting power whose duty it is to safeguard the interests of his country during the armed conflict, and whether such protection can be considered to be effective.6
[44] In other words, foreign invasion or occupation of a country may, in certain instances, result in persecution under the Convention having regard to the specific circumstances of the case. I find that the claimants have a well-founded fear of persecution in Ukraine due to the current conflict with invading Russian military, who has occupied the eastern region of Ukraine and continues to target all Ukrainians in Ukraine.
[45] UN report from in the NDP for Ukraine at item 1.23 states that “that Russian authorities have committed a wide range of violations of international human rights law and international humanitarian law in many regions of Ukraine.” The report provides examples of humanitarian violations by Russian armed forces that include deliberate targeting vital infrastructure, attacks on civilians, unlawful confinement, torture, rape, and the forcible transfer of children.
[46] This is also reflected other parts of the NDP including a 2023 Freedom House report at item 2.3 that states that there is evidence of Russian war crimes such as targeted executions, rape, and torture, of Ukrainian civilians by Russian forces. The report also indicates that Russian authorities have openly admitted that their aim is to extinguish Ukrainian statehood. The report also describes how Russian forces have systematically attempted to destroy Ukrainian statehood, including by destroying historical monuments, museums, Ukrainian-language signs, and Ukrainian books, as well as by forcing teachers to teach the Kremlin’s version of history that denies the existence of the Ukrainian nation. The Freedom House report cites another report that states that there were reasonable grounds to believe that the Russian state was responsible for direct and public incitement to commit genocide, and that a pattern of atrocities committed by the Russian military pointed to intent to destroy the Ukrainian national group.
[47] The most recent version of the NDP for Ukraine a Freedom House report at NDP item 2.3, states that, in areas subjected to longer periods of occupation, Russian authorities have used intimidation, arbitrary detention, and torture to assert control over political expression, the education system, and many other aspects of civilian life.
[48] Russia’s invasion and subsequent military action in Ukraine has led to a grave deterioration in the human rights situation across the country.
[49] The human rights situation across the country remains dire amid the ongoing armed attack by the Russian Federation against Ukraine. The international armed conflict has led to a wide range of human rights violations affecting both civilians and combatants. OHCHR has verified numerous allegations of arbitrary deprivation of life, arbitrary detention and enforced disappearance, torture and ill-treatment, and conflict-related sexual violence (CRSV).
[50] During the reporting period, OHCHR recorded a total of 5,987 civilian casualties, with 1,605 persons killed and 4,382 persons injured, according to NPD item 2.6. Russian armed forces have used explosive weapons with wide area effects in populated areas.13 Serious violations of international humanitarian law (IHL) and gross violations of international human rights law have occurred in the course of the conflict.14 (NDP 2.6). Russian forces are alleged to be engaging in war crimes by targeting the civilian population. NDP 1.27.
[51] Furthermore, the objective evidence establishes that, the situation for ethnic minorities has only been exacerbated by the current war in Ukraine. Ethnic minorities have been disproportionately affected by the conflict. It has been reported that foreigners attempting to leave Ukraine have experienced unequal treatment. Human Rights Watch reported that their interviews with foreign nationals trying to flee Ukraine “revealed a pattern of blocking or delaying foreigners from boarding buses and trains, apparently to prioritize evacuating Ukrainian women and children” at NDP items 1.27 and 14.15.
[52] The principal claimant testified that he fears that he will be perceived as being anti-national for evading the military draft if he returns to Ukraine now. He further testified that even if he were to return to Ukraine now, he would still refuse to join the military as he is against war, wants to protect his children, and would not join the Ukrainian military even if he was required to do so.
[53] A 2018 RIR on the penalties for evading conscription and desertion at Item 8.3 indicates that the penalties include imprisonment up to 10 years. That said, the situation in Ukraine has changed significantly with the Russian invasion in February 2022. In April of 2022, an Organization for Security and Co-operation in Europe report at Item 1.27 describes how there is significant uncertainty as to what exceptions now exist to conscription in Ukraine. A UNHCR report from March 2022 at Item 1.23 indicates that the Ukrainian government has issued a decree for general mobilization of adult males, and men aged 18 to 60, such as the claimant, are prevented from leaving the country. Objective evidence shows that Ukrainian government recalls citizens between the ages of 18 and 60 for service during times of war.
According to sources, in 2014, the Ukrainian government reinstated the use of conscription in response to the conflict with pro-Russian separatists in the East (Peace and Justice 18 Oct. 2014; Foreign Policy 18 Feb. 2015; BBC 2 May 2014).[9]
[54] A Response to Information Request (RIR) shows that individuals who are mobilized by the Ukrainian military during times of war, are sent letters to join. The result is imprisonment for 2-5 years and use of force as deemed necessary by the authorities against objectors and deserters.
Article 1 of the Law of Ukraine “On Military Duty and Military Service” indicates that the “[d]efence of the Motherland, the independence and territorial integrity of Ukraine is the Constitutional duty of citizens of Ukraine” (Ukraine 1992, Art. 1). The law refers to a military service notice as a “call-up paper” (ibid., Art. 14(6)). Call-up papers are issued by the city (regional) military commissariats (ibid., Art. 15(8)). Article 14(6) of the same law states that “[i]n order to register with an enlistment office, citizens of Ukraine are obliged to report in person to a military regional (city) commissariat by a date specified in call-up papers and present necessary documents, a list of which is established by the Ministry of Defence of Ukraine” (ibid.).
Chapter XIX of Ukraine’s Criminal Code entitled “Criminal Offenses Against the Established Procedure of Military Service (Military Offenses),” provides the following information regarding penalties for desertion and military evasion: Article 408. Desertion 1. Desertion, that is the absence from a military unit or place of duty without leave for the purpose of avoiding the military service, or failure to report for duty upon appointment or reassignment, after a detached service, vacation or treatment in a medical facility for the same purpose, – shall be punishable by imprisonment for a term of two to five years. 2. Desertion with weapons or of a group of persons upon their prior conspiracy, – shall be punishable by imprisonment for a term of five to ten years. 3. Any such act as provided for by paragraph 1 or 2 of this Article, if committed in state of martial law or in a battle, – shall be punishable by imprisonment for a term of five to twelve years. Article 409. Evasion of military service by way of self-maiming or otherwise 1. Evasion of military service by a military serviceman by way of self-maiming or malingering, or forgery of documents, or any other deceit, – shall be punishable by custody in a penal battalion for a term up to two years, or imprisonment for the same term. 2. Refusal to comply with the duties of military service, – shall be punishable by imprisonment for a term of two to five years. 3. Any such acts as provided for by paragraph 1 or 2, if committed in state of martial law or in a battle, – shall be punishable by imprisonment for a term of five to ten years. (Ukraine 2001, Art. 408-409).[10]
[55] With respect to detention in Ukraine, the US Department of State report at Item 2.1 lists a number of significant human rights issues in the country, and those include unlawful arbitrary killings, including extrajudicial killings by the government or its agents, torture and cases of cruel, inhumane, or degrading treatment or punishment of detainees by law enforcement personnel, harsh and life threatening prison conditions, arbitrary arrest or detention, and serious problems with the independence of the judiciary.
[56] Regarding any additional risks that the associate claimant may face as a woman in Ukraine is corroborated in the NDP. The objective evidence, in particular a rapid gender analysis by CARE International and UN 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 (GBV), particularly domestic violence and conflict-related sexual violence…” This report further delves into the challenges for women of all ages to access aid and services in the war torn areas of eastern Ukraine. Many have fled and face further hurdles in accessing safe shelters in the western region of the country.
For many respondents, financial and social support, including pensions, child benefits and disability benefits, is their only source of income. Many are concerned about whether they will be able to access these benefits. This is especially true for female-headed households, families with persons with disabilities and families of pensioners. Moreover, this issue disproportionately affects women, who make up 72 per cent of social protection recipients and the majority of older people and caregivers in Ukraine.[11]
[57] [57] Women and girls are also more at risk of conflict based sexual assault, NDP 5.6 states that, “Increasing and concerning media reports of conflict related sexual violence are emerging in Ukraine. Many interviewees raised GBV as a safety concern.
[58] Based on the evidence before me, and the claimants’ particular circumstances, I find that the claimants have demonstrated a well-founded fear of persecution on both a subjective and objective basis. I also find that the claimants would face a serious possibility of persecution in Ukraine based on their profiles.
State Protection in Jordan
[59] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence that state protection is inadequate. I find that the claimants have rebutted this presumption. The Gender Guidelines make it clear that contextual and intersectional approach should be used to assess whether a claimant’s efforts to obtain state protection were reasonable, including their gender, age, education level, support network, experience of trauma, the profile of the agent of persecution, the nature of the relationship between the claimant and the agent of persecution, previous efforts to obtain state protection, and the response of the authorities and country conditions, including cultural and societal norms that prevent and stigmatize reporting of gender-based violence.
[60] The associate claimant testified that her mother went to the authorities in the past to request protection however the mother was informed that if she made another report there would be consequences. Furthermore, the AC testified that her father had connections in the police and women who requested protection were often not assisted.
[61] She testified that she did not approach the police again because she knew that they would not help her. Tab 5.6 of the Jordanian NDP talks about protections available to women and children who are targets of gender-based violence, but it indicates that the measures of protection are weak and not in line with international standards. The document reports that family disputes often involving violent behaviour, are result — sorry — are resolved in informal, lenient settings encouraging reconciliation. Further, the general approach taken by authorities is to protect women from gender-based violence. They use protective detention, which is not adequate and is not an appropriate form of state protection for gender-based violence. I thereby find that there is no adequate state protection in Jordan for the claimants.
Internal Flight Alternative (IFA) in Jordan
[62] The test for a viable IFA has two (2) prongs. First, I must be satisfied that the claimants would not face a serious possibility of persecution and that they would not be personally subjected to a risk to life, of cruel and unusual treatment or punishment, or danger of torture in the IFA. Second, I must be satisfied that it would not be unreasonable in all of the circumstances, including those particular to the claimants, for them to seek refuge there.
[63] In this case, I find that the claimants do not have a viable IFA because I am satisfied that the agent of harm would have the motivation and means to pursue them throughout Jordan. With respect to motivation to pursue the claimants, given the nature of his relationship with the claimants as the AC’s biological father, the lengthy history of abuse, and his escalating threats, I find that the agent of harm would be motivated to track down and harm the claimants. This conclusion is reinforced by the Gender Guidelines, which state that the cycle of violence and coercive control is relevant as to whether an agent of persecution has the motivation to pursue and locate a claimant.
[64] I also find on a balance of probabilities that the agent of harm would have the means to locate the claimants throughout Jordan. Jordan is a small country of approximately 89,000 people and is about three (3) quarters the size of Pennsylvania, which can be found at item 1.3 of the NDP.
[65] As I find that the agent of harm has the means and motivation to locate the claimants, I find that they would face a serious possibility of persecution throughout the country and thereby that the test for IFA fails on the first prong. I thereby find that there is no viable IFA to the claimants in Jordan.
State Protection in Ukraine
[66] I have considered whether adequate state protection is available for the claimants, and I find that there is none. The claimants fear violence from the invading and occupying Russian military. While the Ukrainian state is attempting to provide protection from the Russian attack, there is great uncertainty with the level of protection the state can provide. Furthermore, the principal claimant testified to facing further persecution by the Ukrainian military as he has evaded the draft and would continue to do so upon his return, and therefore he fears being perceived as being anti-national and prosecuted for evading the draft. Based on the country condition evidence referenced above, I find that there is no operationally effective state protection available to the claimant in their circumstances.
Internal Flight Alternative (IFA) in Ukraine
[67] I have also considered whether the claimants would have a viable internal flight alternative available to them, and I find that they do not. Given the ongoing crisis in Ukraine related to the Russian invasion that is affecting the entire country, I find it would be unreasonable for the claimants in these circumstances to try and seek refuge elsewhere in Ukraine.
[68] I take note of NDP Item 1.23 of which is a recent UNHCR Position Paper on returns to Ukraine in which they note, 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 residents of Ukraine on the basis of an internal flight or relocation alternative. And based on the evidence, I would agree and find that no IFA is available.[12]
[69] This situation exists throughout the country and therefore I find that there is no location within Ukraine that the claimants can relocate to and not face a serious possibility of persecution on the Convention ground of being in a particular social group as a woman.
[70] As such, I find that the claimants do not have a viable internal flight alternative available to them.
CONCLUSION
[71] So, in conclusion I find that the claimants are all Convention refugees in both countries of reference, Ukraine and Jordan, under section 96 of the Act and I accept each of their claims.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Immigration and Refugee Board of Canada (IRB), Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, 2022.
[3] Immigration and Refugee Board of Canada (IRB), Chairperson’s Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, September 1996.
[4] BOC 2.0
[5] Exhibit 1.
[6] Exhibit 1.
[7] Exhibit 3.2, National Documentation Package, Saudi Arabia, 31 March 2023, tab 3.1: Rights of non-citizens born in Saudi Arabia to non-citizen Saudi-born parents, including residency, employment, education and access to social services; whether a non-citizen can return to Saudi Arabia after the “Return Before” date on their … Immigration and Refugee Board of Canada. 19 May 2015. SAU105183.E. National Documentation Package, Saudi Arabia, 31 March 2023, tab 3.4: Saudi Arabian Citizenship System. Saudi Arabia. 1954. National Documentation Package, Saudi Arabia, 31 March 2023, tab 3.7: Residency permits through sponsorship, including the foreigner’s family members eligible to be sponsored; the process for a sponsor to revoke their sponsorship and whether the foreigner receives documention that the sponsorship has been … Immigration and Refugee Board of Canada. 31 March 2023, tab 3.11: Report on Citizenship Law: Saudi Arabia. European University Institute. Global Citizenship Observatory. Zeineb Alsabeehg. July 2022. RSC/GLOBALCIT-CR 2022/03.
[8] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.).
[9] Exhibit 3.1, National Documentation Package, Ukraine, 30 June 2023, tab 8.1: Information on military conscription and exemption from service, including alternative military service for conscientious objectors; whether members of the Orthodox Church can perform alternative military service (2014-November 2015). Immigration and Refugee Board of Canada. 1 December 2015. UKR105366.E.
[10] Exhibit 3.1, National Documentation Package, Ukraine, 30 June 2023, tab 8.4: Military service, including information on military service notices, who issues them, their contents, and physical characteristics; whether notices have a warning regarding refusal or evasion of military service; information on penalties for refusing or evading military service (2014- May 2015). Immigration and Refugee Board of Canada. 1 June 2015. UKR105186.E.
[11] National Documentation Package, Ukraine, 30 June 2023, tab 5.6: Rapid Gender Analysis of Ukraine. CARE International; UN Women. 4 May 2022.
[12] National Documentation Package, Ukraine, 30 June 2023, tab 1.23: UNHCR Position on Returns to Ukraine. Office of the High Commissioner for Human Rights. March 2022.