2023 RLLR 233

Citation: 2023 RLLR 233
Tribunal: Refugee Protection Division
Date of Decision: November 28, 2023
Panel: Kalliopi Kefalas
Counsel for the Claimant(s): Cyrus Haghighi
Country: Russia
RPD Number: VC3-08481
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A

DECISION 

[1] MEMBER:  This is the division of the Refugee Protection Division in the claim of XXXX XXXX XXXX XXXX XXXX, who claims to be a citizen of Russia and Afghanistan, and who is seeking protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act, otherwise known as IRPA.  

ALLEGATIONS

[2] The following is a brief synopsis of the allegations contained in the claimant’s Basis of Claim form and narrative in Exhibit 2.  The claimant is a 40-year-old ethnic Tajik man born in Afghanistan.  He immigrated to Russia in 2005 and became a citizen in 2022.  He fears persecution by the Russian state due to his political opinion and opposition to the war in Ukraine and his refusal to report for military service.  He fears persecution in Afghanistan by the Taliban led government because of his imputed political opinion associated with his Tajik ethnicity from Panjshir province. 

DETERMINATION

[3] I find that the claimant is a Convention refugee pursuant to Section 96 of the IRPA. 

ANALYSIS

Identity

[4] I find that the claimant’s personal identity and identity as a citizen of Afghanistan and Russia, are established on a balance of probabilities by a copy of his Afghan passport in Exhibit 1 and his Russian passport in Exhibit 5, and U.S. biometrics report in Exhibit 4.  

Credibility

[5] In line with the Federal Court’s decision in Maldonado versus Canada, a claimant’s sworn testimony creates a presumption that the individual’s allegations are true unless there is a reason to doubt their truthfulness.  In this case, I have found the credible, the claimant to be a credible witness.  He testified in a consistent and straightforward manner and there were no material unexplained inconsistencies, omissions, or contradictions.  He did not embellish his testimony even when he had an opportunity to do so.  

[6] He testified about his opposition to the war in Ukraine and his reasons for opposing.  He also spoke about his family in Afghanistan and how they live in fear from the Taliban.  He explained that ethnic Tajiks who are from Panjshir province were the only group to resist the Taliban.  As such, the Taliban now targets and persecutes Tajiks from Panjshir.  

[7] The claimant also submitted documents found in Exhibits 5 and 6 in support of his claim.  I give high weight to the following documents as I find them to be authentic and probative in establishing, in establishing on a balance of probabilities the credibility of his allegations that the claimant has been notified and summoned to enrol in mandatory service in Russia and that he is an ethnic Tajik from Afghanistan from the Panjshir province.   

[8] In support of the claim, the following documents were provided: Summons for the claimant issued by the military commissariat of Moscow region to appear for military service on XXXX XXXX, 2023, Afghan national identity cards for the claimant’s wife, sister, brother, and children; all cards list Tajik as the ethnicity; the place of birth for his wife, sister, and brother is listed as Panjshir,  claimant’s birth certificate which shows his place of registration as Panjshir; the summons corroborates the claimant’s allegation that he was summoned to the Russian military service, the Afghan identity card support the allegation that the claimant is Tajik.  

[9] I note that the claimant was born in Kabul and his family currently resides there as well; however, the identity cards support the claimant’s allegations that his family originates form the Panjshir region.  The birth certificate also supports this. 

Reavailment to Afghanistan

[10] I note that the claimant has returned to Afghanistan many times since moving to Russia in 2005.  His wife and children live there; however, he testified that he has not gone back since the Taliban takeover in Afghanistan because the Taliban are targeting Panjshirs and he believes he is now at risk of persecution.  Given he has not gone back to Afghanistan since the risk of persecution arose after the takeover of the Taliban, I make no negative inference on his credibility, and this does not raise significant concerns with respect to subjective fear or credibility. 

Failure to Claim in the United States

[11] The claimant transited through the United States before entering Canada.  I asked him why he did not claim in the United States, and he said that the refugee process takes a long time there.  Given he has his wife and children in Afghanistan and their lives are in danger, he did not want to make a claim and wait a long time in the United States.  I find this explanation is reasonable in the circumstances and I do not draw a negative inference from his failure to claim in the United States.  Therefore, this does not raise significant concerns with respect to his subjective fear or credibility.

[12] Given all the foregoing, I find that the claimant has established his allegations and subjective fear on a balance of probabilities.  

Nexus

[13] I find that the claimant has established a nexus to the Convention grounds of political opinion and race for both Russia and Afghanistan.  He holds an anti-government political opinion for Russia as he opposes the Russian invasion of Ukraine.  His ethnicity as an Afghan puts him at a heightened risk of persecution for his political opinion.  In Afghanistan, his ethnicity as a Tajik from Panjshir is linked to a perceived anti-government political opinion.  Therefore, I have assessed this claim pursuant to Section 96 of the IRPA.  

Claim Against Russia

Well-Founded Fear 

[14] The objective evidence in the National Documentation Package, or NDP, for Russia, is consistent with the claimant’s account of fearing persecution. 

[15] Item 1.10 identifies that military service is compulsory in Russia for all men aged 18 to 27.  In Russia, draft evasion is a criminal offense. The right to conscientious objection is not recognized and there are no provisions for substitute or alternatives to service.  

[16] Items 1.9, 2.1, 2.5, 2.22, 2.24, and 2.26 all report that since Russia launched a full-scale invasion of Ukraine on February 24^th, 2022, several countries’ independent media and human rights organizations including the United Nations, have observed massive human rights abuses such as the forced transfer of civilians, thousands of civilian deaths, and other abuses committed by Russia’s forces and Russia led proxies.  

[17] It is reported that those crimes and violations of law of war could amount to war crimes and crimes against humanity. Objective evidence in these items also indicates that the Russian Armed Forces have been accused of committing human rights abuses and crimes against humanity.  

[18] At item 2.5, it is noted that Russians left the country in large number after the war began with the Federal Security Service, FSB, reporting that 3.9 million people departed in the first quarter of the year.  The government launched a partial mobilization to bolster its war effort in late September.  Some Russian media outlets estimated that as many as 700,000 people, mostly military aged men, left Russia in the following two weeks to avoid being drafted.  

[19] Item 4.16 demonstrates that in Russia, persons who are critical of the government or perceived as such, are likely to be at risk of serious mistreatment and serious harm.  Any actual or perceived opposition to the invasion of Ukraine has been met with extrajudicial and excessive violence, arbitrary detention, and other repressive tactics.  Persons who protest about the invasion of Ukraine may be targeted by the law on spreading fake news about the army or the military operation.  

[20] Persons convicted of multiple violations of rules relating to protests within a six (6) month period, may receive a substantial fine or prison sentence.  Persons who are accused of using their position to spread fake information or distribute fake news with falsified evidence could be jailed for five (5) to 10 years.  If the falsified information is deemed to have grave consequences, the punishment will be 10 to 15 years in prison. Some detainees have produced evidence of torture. 

[21] Item 2.1 reports that in Russia, every topic involving the war in Ukraine is extremely sensitive.  On March 5, 2022, President Putin signed into effect laws that criminalize independent war reporting and protesting the war was sentenced up to 15 years in prison.  

[22] Item 8.4 indicates that Russia has widely implemented and expanded the criminal code sections relating to military evasion prior to the invasion of Ukraine.  It is reported that desertion, sorry, desertion and objection to military service is a highly sensitive topic for Russian authorities and retribution for desertion includes fines, lengthy prison sentences, and some reports of forced disappearances and killings.  

[23] In relation to the heightened risk the claimant faces due to his race, item 2.1 indicates that there are reports that Russian authorities disproportionately mobilized non-Russian ethnic groups to fight in the war against Ukraine. 

[24] As well, in item 2.3, it is noted that ethnic minorities are over-represented in draft numbers and were among the highest ranking among military casualties.  

[25] Given that there are no serious credibility issues with respect to the allegations of the claimant coupled with the documentary evidence set out above, I find that the claimant has established a well-founded fear of persecution by the government in Russia due to his military evasion and political opinion and opposition to the war in Ukraine. 

State Protection

[26]                   The objective evidence above confirms that the state persecutes those who object or evade military service following the invasion of Ukraine.  Given the claimant’s particular circumstances and in the context of the objective evidence above, I find that there is clear and convincing evidence that the state would be unwilling or unable to provide protection, provide the claimant with adequate protection.  

Internal Flight Alternative 

[27]                   Items 1.6 and 2.1 report on the effective control that Russia has over all of its territories.  As the agent of the, as the agent of persecution is the state and with consideration to the claimant’s personal circumstances, as well as the objective evidence as noted above, I find on a balance of probabilities that the claimant faces a serious possibility of persecution throughout Russia, and no Internal Flight Alternative would be available to him.  

Claim Against Afghanistan

Well-founded Fear of Persecution

[28]                   I also find that the objective evidence set out below supports the claimant’s allegations that he faces a serious possibility of persecution by the Taliban led government in Afghanistan due to his imputed political opinion associated with his Tajik ethnicity and his Panjshir origin.  

[29]                   According to the objective evidence at item 13.3 of the Afghan NDP, Panjshirs are a Tajik people who live in the mountainous areas north of Kabul. 

[30]                   According to Minority Rights Group International, socially and politically Panjshirs fall into the same category as other suppressed ethnic groups such as the Hazaras and Nuristanis.  The same item also notes that during the Taliban’s previous rule, the Taliban captured Panjshirs and members of other ethnic groups and imprisoned them during periods of ethnic conflict.  Additionally, the item notes that Panjshirs rose in prominence because they were part of the backbone of the anti-Taliban northern alliance of Ahmad Shah  Massoud.  The Taliban swept into Panjshir on September 6, 2021, quelling the last resistance to the group’s rule in the country.  

[31]                   Item 4.0 notes that in the wake of the Taliban’s conquest, wounded local fighters and others were threatened with execution.  Others were denied food and water as Taliban fighters said it would be better that wounded Panjshiri fighters perished than lived to fight another day. 

[32]                   Item 2.1 reports that the Taliban arbitrarily killed civilians in Panjshir as collective punishment against communities where the resistance was active.  The objective evidence notes that the persecution of Tajiks is not limited to Panjshir province.  

[33]                   At Item 1.13, a representative of an international organization in Afghanistan noted that there was a higher level of threat in Kabul towards Tajiks from Panjshir.  This is where the claimant’s family is residing and where his father has been targeted by the Taliban.  Ultimately the claimant is a Tajik from Panjshir region, a region that was prominent in opposing the Taliban during the group’s first rule of Afghanistan from 1996 until 2001, and since the Taliban regained control of Afghanistan in 2021, the group has committed severe human rights abuses against Tajiks in Panjshir and even in Kabul.  

[34]                   Given this evidence, I find that the claimant would have a serious possibility of persecution because I find that it is more likely than not that the Taliban would view him as a potential opponent based solely on his ethnicity as a Tajik whose family originates in Panjshir. 

[35]                   Based on the totality of the evidence, I find that the claimant has established that he has a well-founded forward-facing risk of persecution in Afghanistan.  

State Protection

[36]                   Except in situations where the state is in complete breakdown, the states must be presumed capable of protecting their citizens.  This is one of those cases where the state has broken down and another group with an even worse record, the Taliban, has seized control and largely taken over the country.  Thus, the Taliban, the agent of persecution, generally is in control of the state and the persecution the claimant would face if he returned to Afghanistan is at the hands of the Taliban.  Accordingly, I find that there is no state protection available to the claimant.  

Internal Flight Alternative 

[37]                   Further, given that the Taliban is the agent of persecution and that they have seized control of the country, I find that the claimant faces a serious, a serious risk of persecution throughout Afghanistan.  I find that there is no Internal Flight Alternative for the claimant in Afghanistan.  

CONCLUSION

[38]                   For these reasons, I find that the claimant is a Convention refugee under Section 96 of the IRPA leading me to accept his claim.  

——— REASONS CONCLUDED ———