2023 RLLR 263

Citation: 2023 RLLR 263
Tribunal: Refugee Protection Division
Date of Decision: October 10, 2023
Panel: Hannah Gray
Counsel for the Claimant(s): Tatyana Shevchenko
Country: Ukraine
RPD Number: VC3-05795
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A

DECISION 

[1]                   MEMBER: This is a decision of the Refugee Protection Division, the RPD, in the claim of XXXX XXXX, the claimant of Ukraine, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, the IRPA. 

DETERMINATION

[2]                   I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA, based on his well-founded fear of persecution in Ukraine. 

ALLEGATIONS

[3]                   The specifics of the claim are stated in the claimant’s Basis of Claim form and narrative in evidence. The claimant is a 24-year-old single Ukrainian male who worked as an XXXX XXXX in the XXXX, or the XXXX XXXX XXXX at a XXXX in Ukraine. He is from the Kiev region. While living in Ukraine, the claimant was part of the social movement against the Zelenskyy party, which is the current government of Ukraine. He attended meetings and XXXX meetings demanding the resignation of the current president of Ukraine. In XXXX XXXX 2022, the claimant woke up and heard bomb explosions in Kiev. He lived close to the XXXX XXXX and the neighbourhood has constantly been bombed due to their location near the XXXX XXXX and the XXXX. The XXXX XXXX XXXX near their house was damaged and the street where he lived was partially destroyed. 

[4]                   In XXXX 2022, the XXXX of XXXX 2022, the claimant fled from Ukraine. In XXXX 2022, the claimant arrived in Canada under the CUAET program, and he made his refugee claim in March 2023. In XXXX 2023, the claimant’s parents’ apartment was stormed by police, by the Ukrainian police, who are looking for the claimant due to his involvement in anti-government meetings and protests. The claimant’s brother was mistaken for the claimant and was beaten by the police at this time. The claimant’s parents and brother have since fled Ukraine and gone to Germany. 

[5]                   In sum, the claimant fears persecution, including a risk to his life if he were to return to Ukraine due to his opposition to the Ukrainian government in the ruling party. Secondly, the claimant fears a risk to his life from Russian forces due to the ongoing invasion of Ukraine, which targets Ukrainians. 

ANALYSIS 

Identity

[6]                   I am satisfied with the identity of the claimant as a citizen of Ukraine, which is established by his testimony and the copy of his passport in evidence. 

Credibility

[7]                   When a claimant swears 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 claimant. He testified in a straightforward, forthright, detailed, and candid manner, and there was no material inconsistencies, omissions, or contradictions between the claimant’s testimony and the other evidence in this case. The claimant did not exaggerate or tailor his evidence, and in summary, his testimony was consistent with the other evidence on the central aspects of his claim. I find the claimant provided ample details to expand upon his allegation, and he also provided evidence during the — prior to the hearing, which included the position paper on returns to Ukraine from March 2022 and that is the UNHCR, the Ukrainian crisis situation analysis from April 2022, and other reports from the UN Human Rights Department. He also included social media reports, photographs of the claimant’s involvement in anti-government protests in Kiev, affidavits from XXXX XXXX (ph), XXXX XXXX (ph), and XXXX XXXX (ph), photographs from the protest that the claimant took part in, as well as photographs that were taken by the claimant’s mother when the police stormed into his parents’ apartment and beat his brother. He also provided a screenshot from the Telegram channel, employment letters, reference letters from previous employers and the XXXX school, and a XXXX report and assessment. 

[8]                   Given the claimant’s careful testimony and supporting documents, I find that he has established on the balance of probabilities the facts alleged in his claim, including that the claimant was actively involved in protests and meetings where he spoke out against the government of Ukraine, and it was prior to the war as well as during the war. Furthermore, I accept on a balance of probabilities that the claimant was targeted by police in Ukraine who visited his parents’ house in XXXX 2023 looking for the claimant. In sum, I find the claimant to be a credible witness and therefore believe what he has alleged in support of his claim. 

Nexus

[9]                   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. 

[10]                   It is a bit loud. Madam Interpreter, could you put your microphone —

[11]                   INTERPRETER: Sorry, I will turn off my — 

[12]                   MEMBER: Okay. Thanks. 

[13]                   The allegations are establishing a nexus to the Convention for the claimant on the ground of political opinion due to the claimant’s participation in XXXX role in anti-government protests in Ukraine. Furthermore, the claimant testified that he is opposed to killing and fears that he will be conscripted to join the Ukrainian military if he were to return now. He has also heard that those who object to the current Ukrainian government are sent to the front lines of the war, and they are undertrained and underequipped to fight. He also fears that he would be harmed or killed in the war with Russia as he is a citizen of Ukraine and will therefore be targeted by the Russian military. 

[14]                   Based on the aforementioned evidence, I will therefore assess this claim under section 96. 

Well-Founded Fear of Persecution and Risk of Harm

[15]                   I find the claimant has a well-founded fear of persecution based on his political opinion as well as his nationality. As for the claimant’s fear due to what may happen if he refuses to join the Ukrainian military, according to the National Documentation Package for Ukraine, a 2015 response to information request on conscription in Ukraine found at Item 8.1 of the NDP. It describes how conscription was reintroduced in response to the conflict with pro-Russian separatists in eastern Ukraine. This response to information request indicates that alternative service is available for conscientious objectors but does note that there is no right to conscientious objection once mobilization occurs, which it has in Ukraine. A 2018 RIR on the penalties for evading conscription and desertion at Item 8.3 of the NDP indicates that penalties include imprisonment up to 10 years. That said, the situation in Ukraine has changed significantly with the Russian invasion, which began in late February 2022. 

[16]                   In April 2022, an Organization for Security and Co-operation in Europe report at Item 1.27 of the NDP describes that there is significant uncertainty as to what expectations now exist to conscription in Ukraine. A UNHCR report from March 2022 at Item 1.23 of the NDP indicates that the Ukrainian government has issued a decree for general mobilization of adult males aged 18 to 60, which includes the claimant who is 24 years old, and they would be prevented from leaving the country at this time. Regarding the penalty for military service evasion, the same RIR notes that individuals who desert such as failing to report for duty shall be punished by imprisonment for a term of 2 to 5 years, according to Article 48 of the Ukraine Criminal Code, which is entitled Criminal Offences Against the Established Procedure of Military Service. And this is at the NDP Item 8.4. According to a report by the Organization for Security and Co-operation in Europe, there are numerous reports of individuals perceived to be pro-Russian supporters being 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 consist of individuals being duct taped to electricity poles or trees partially or fully strips being, including with sticks and rods and sprayed with paint or having the word Mirador (ph) written on their body and clothes. The Organization for Security and Co-operation in Europe has documented more than 45 such cases, and this is at NDP Item 1.27. 

[17]                   With respect to the claimant’s fear of arrest and detention in Ukraine for his activity and being anti-government or anti against the president of Ukraine, the US Department of State report at Item 2.1 of the NDP 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, inhuman 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. Furthermore, the US Department of State report at NDP Item 2.1 also indicates that in Russian controlled areas, Russian led forces have engaged in unlawful or widespread civilian harm, enforced disappearances or abductions and torture, and physical abuses or punishment. 

[18]                   Based on the totality of the evidence before me, I find the claimant has established a well-founded fear of persecution in Ukraine due to both his political opinion, which is against the government of Ukraine and against being conscripted into the government as he is against the current war. And therefore, I find the claimant facing a series of forward-facing possibilities of persecution if he were to return to Ukraine now, that both the Ukrainian government and the Russian military. 

State Protection

[19]                   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. Given that the Ukrainian government is the primary agent of persecution in this case, it appears objectively unreasonable for the claimant to seek the protection of the state. Consequently, the presumption of state protection has been rebutted. 

Internal Flight Alternative 

[20]                   With respect to an internal flight alternative, I do not find the claimant could safely live in any other parts of Ukraine, given that the agent of persecution is the government of Ukraine, and he cannot be expected to hide from the state. 

CONCLUSION

[21]                   For the reasons above, I determined that the claimant is a Convention refugee pursuant to section 96 of the Act, and I accept his claim. 

——— REASONS CONCLUDED ———