2023 RLLR 232
Citation: 2023 RLLR 232
Tribunal: Refugee Protection Division
Date of Decision: December 18, 2023
Panel: David Jones
Counsel for the Claimant(s): XXXX XXXX
Country: Russia
RPD Number: VC3-08459
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada for the claim of XXXX XXXX, who is a citizen of Russia seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I have reviewed and applied the Chairperson’s guideline on gender considerations and proceedings before the Immigration and Refugee Board. The claimant was assisted by XXXX XXXX, who had no previous refugee experience and acted as her representative without fee. The Minister was notified on September 13, 2023, with respect to exclusion under Article 1E as the claimant resided in Ukraine, but the Minister did not respond to the notice.
ALLEGATIONS
[2] The claimant fears persecution, including a risk to her life in Russia due to her opposition to the Russian invasion of Ukraine and her background of living in Ukraine for over 20 years. The claimant is a 61-year-old widow, who was born in Russia, but left Russia when she was a child. The claimant has now returned to Russia. The claimant has family in Canada and no family or support in Russia. The claimant has lived in Ukraine since 1998 as a permanent resident. The claimant’s husband was Ukrainian.
[3] On February 24, 2022, Russia began the full scale invasion of Ukraine. On XXXX XXXX, 2022, the claimant’s husband suddenly passed away from cancer and the claimant was left alone. The claimant’s narrative describes the aggressive responses she received in Ukraine due to her Russian Passport and background. On XXXX XXXX XXXX 2022, the claimant left XXXX and went to XXXX and then traveled to XXXX, where she flew to Canada.
[4] On XXXX XXXX, 2022, the claimant arrived in Canada. The claimant’s narrative describes how she continues to struggle with mental health issues due to the conflict and the loss of her husband.
DETERMINATION
[5] I find that the claimant is a Convention refugee.
ANALYSIS
Identity
[6] The claimant’s identity as a citizen of Russia has been established on a balance of probabilities by her testimony and her Russian Passport, which is located at Exhibit 1.
1E Exclusion
[7] Section 98 of the Act and Article 1E of the refugee convention provide that a claimant is excluded from refugee protection if the claimant is recognised by the competent authorities of the country in which she has taken residence is having the rights and obligations which are attached to the possession of the nationality of that country. The test to determine whether a claimant is excluded under Article 1E is laid out in Zhang.
[8] During the hearing, the claimant testified that she has been living in Ukraine since 1998. The claimant’s husband was a Ukrainian citizen and she had permanent resident status in Ukraine with no expiration date. The claimant testified that her status in Ukraine allowed, for example, the right to work, the right to return to the country, and the right to buy a home. I find on a balance of probabilities that, based on the claimant’s testimony, the claimant has status in Ukraine that is substantially similar in nationals in the country.
[9] I have also considered and adopted the reasoning in the jurisprudential guide MB8-00025 as it relates to the analysis of the application of Article 1E. As outlined in the jurisprudential guide, Article 1E excludes from refugee protection, individuals who do not require protection because they enjoy a form of surrogate protection in another safe country where they enjoy substantially the same rights and obligations as nationals of that country.
[10] Therefore, as outlined in the jurisprudential guide, Article 1E requires the RPD to consider the risks raised by a claimant in respect to their country of residence, in this case Ukraine, before finding that they are excluded from protection by the combined effects of Article 1E and section 98 of IRPA.
Risks to the Claimant in Ukraine
[11] The claimant is from the Odessa region in Ukraine. The claimant testified about her fears of returning to Ukraine due to the Russian invasion and her heightened risk as a Russian national. I note that the country condition documents indicate that Odessa has been the center of conflict. For example, the 2023 UNHCR report item 2.8 and the Ukrainian National Documentation Package, which is found at Exhibit 3.2. Thus, Odessa is one (1) of the cities where significant civilian injuries and deaths have occurred.
[12] The claimant also provided supporting documents found at Exhibit-4 that describe how airstrikes against Odessa occurred from the first day of the invasion and still continue. The documents describe why Odessa, as a port city, is an important target for Russia. The country condition documents and National Documentation Package also indicate that Russia has committed significant war crimes against civilians in Ukraine. For example, a UN report from March 2023 at item 1.24 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.”
[13] The claimant, who I found to be credible, also testified about the numerous hostilities she faced since the start of the full scale invasion when she had to show her Russian Passport, and describes how she would stay in her home out of fear. With respect to the claimant’s fears from being perceived as Pro-Russian due to her Russian Passport, in April 2022, Organization for Security and Cooperation in Europe reported 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 defense forces, and civilians in the country.
[14] 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 where their relatives are being detained and their fate.
[15] With respect to gender-based violence, I find that the country condition documents indicate that the claimant would face an increased risk in Ukraine due to her gender. This finding is supported by an April 2022 report on sexual violence and the Ukraine conflict, item 5.3 that indicates that since the Russian invasion in February 2022, there have been numerous reports of Russian Soldiers sexually targeting and assaulting women. The report provides that Russian soldiers were deliberately targeting women and children after Ukraine did not surrender. These reports indicate that women, including senior citizens, have been gang raped, in some instances killed.
[16] As such, I find that the claimant faces a serious possibility of persecution in Ukraine from the Russian invasion, which has increased due to her Russian background and gender, and as such, I find that the claimant is not excluded under Article 1E.
Nexus
[17] The claimant has established a nexus to political opinion based on her actual and perceived support of Ukraine and her opposition to the Russian invasion.
Credibility
[18] I find that the claimant was a credible witness. In making this finding, 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 testified in a straightforward manner and was able to answer questions directly. The claimant testified about how she was born in Russia during the soviet era and left as a child. The claimant has not returned to Russia and has no family or support in the country.
[19] The claimant testified about how she sees herself as Ukrainian. The claimant described how her husband was a Ukrainian citizen and her XXXX XXXX, who now lives in Canada, had a Ukrainian Passport. The claimant testified about her opposition to the invasion of Ukraine by Russia and how she cannot go to Russia because she is from Ukraine.
[20] The claimant also testified about how she would be unable to express her opposition to the invasion in Russia or her Ukrainian background because of the risks she would face in the country. The claimant provided documents to support her claim, which are found in Exhibit-4. These documents include letters of support describing the claimant’s experiences in Ukraine, including from a friend who has known the claimant for over 15 years in the country. I have no reason to doubt the genuineness of these documents, and I give them significant weight to support her connections with Ukraine and her opposition to the Russian invasion.
[21] Given the credible testimony of the claimant along with the supporting documents, I find that on a balance of probabilities, the claimant has established the facts alleged in her claim, including that the claimant opposes the Russian invasion of Ukraine as well as her Ukrainian background. I also make no negative credibility findings due to the delay in the claimant applying for refugee protection.
[22] The claimant had a valid visitor’s visa in Canada when she arrived, and she tried to extend her visa, but faced challenges, so she decided to apply for refugee protection.
Well-founded Fear
[23] The country condition documents for Russia and the National Documentation Package found at 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 political system dominated by President Vladimir Putin indicates numerous significant human rights issues in the country, including extrajudicial killings and forced disappearances by or on behalf of government authorities, pervasive torture by government, law enforcement officers that sometimes result in death, life in harsh and 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, 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.
[24] The report also states that government failed to take adequate steps to identify, investigate, prosecute, or punish officials who committed abuses engaged in corruption, resulting in a climate of impunity. With respect to the full scale invasion of Ukraine, the report indicates how 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.
[25] The claimant has lived in Ukraine for over 25 years. Her family is Ukrainian and she sees herself as Ukrainian. The US Department of State report notes that authorities have conducted politically motivated arrests, detentions, trials, and torture of Ukrainians 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 the Russian forces invasion of 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.
[26] In 2022, Human Rights Watch Report 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 faced excessive use of force by the police. Based on the totality of the evidence, I find that the claimant has established a well-founded fear of persecution in Russia, including due to her Ukrainian background and her political opinion in opposition to the Russian invasion of Ukraine.
[27] 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 connections with the country, I find that the claimant faces a serious forward facing possibility of persecution if she were to return to Russia.
State Protection and Internal Flight Alternative
[28] Given that the state is one (1) of the agents of harm and I find that there is no state protection available to the claimant in Russia. Further, given the Russian state’s capacity and no evidence that there is a part of Russia work conditions would be significantly different and I find that the claimant would face a serious possibility of persecution throughout the country. Accordingly, I find that there is no internal flight alternative available to the claimant in Russia.
CONCLUSION
[29] For the reasons above, I determine that the claimant is a Convention refugee, pursuant to section 96 of the Act, and the Board therefore accepts her claim.
——— REASONS CONCLUDED ———