2024 RLLR 74

Citation: 2024 RLLR 74
Tribunal: Refugee Protection Division
Date of Decision: October 7, 2024
Panel: Jonathan Rasool
Counsel for the Claimant(s): Djawid A Taheri
Country: Russia, Afghanistan
RPD Number: TC3-16234
Associated RPD Number(s): N/A
ATIP Number: A-2025-00362
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the refugee claim of XXXX XXXX XXXX, who alleges to be a citizen of Russia and Afghanistan and is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2] The allegations are set out in the Basis of Claim form. The claimant alleges a serious possibility of persecution both in Russia because of his imputed political opinion as a perceived opponent of the Putin regime, and in Afghanistan because of his imputed political opinion as a perceived opponent of the Taliban.

DECISION

[3] The panel determines that the claimant faces a serious possibility of persecution because of his imputed political opinion as a perceived opponent of the Putin regime in Russia, and from the Taliban in Afghanistan because of his imputed political opinion, if he returns to either Russia or Afghanistan.

[4] Therefore, he is a Convention refugee pursuant to section 96 of the IRPA.

ANALYSIS

Identity

[5] The panel finds that the claimant’s identity as a citizen of both Russia and Afghanistan is established, on a balance of probabilities, by the copy of his Russian passport in Exhibit 1 and his Afghan national identity card in Exhibit 4.

Credibility

[6] Based on the documents on file, including the detailed Basis of Claim narrative submitted by the claimant, and his testimony at the hearing, the panel has noted no serious credibility issues. On a balance of probabilities, the panel finds the following to be true:

[7] The claimant was born on XXXX XXXX, 1970, in Kabul, Afghanistan.

[8] The claimant emigrated to Russia in the mid-1990’s and remained there for the following three decades. He met and married a Russian woman and had two children.

[9] The claimant faced discrimination in Russia from his wife’s family and society in general. The treatment did not change even after he received Russian citizenship in 2020.

[10] In XXXX 2013, the claimant was attacked by an ultra-nationalist group demanding that he leave the country. He suffered various injuries including a broken arm.

[11] When Russia invaded Ukraine in 2022, the claimant had other Afghan friends who were prompted to join the military service. Given the claimant’s opposition to the war, he returned to Afghanistan in XXXX 2022 to assess the possibility of resettling his family there.

[12] The claimant quickly realized that Afghanistan would not be safe for him as Taliban authorities questioned his Russian passport and referred to him as an infidel. He was also unable to speak the Pashtu language. He stayed in Afghanistan for XXXX months and he remained indoors with his family to avoid interactions with Taliban soldiers. He returned to Russia in XXXX 2022 and learned that authorities were looking for him to join the military.

[13] The claimant therefore left Russia on XXXX XXXX, 2023, to Mexico. He then crossed illegally into the United States on XXXX XXXX, 2023, and he was detained for XXXX days.

[14] The claimant has a brother in Canada, so he headed for the Canadian border and entered the country on XXXX XXXX, 2023. He made a claim for asylum pursuant to the Safe Third Country Agreement to reunite with his brother.

[15] The panel accepts as reasonable that the claimant did not claim asylum in the US since the panel finds that the claim raises no credibility concerns and that he made the journey for the purpose of accessing the Canadian border and reuniting with his brother.

[16] The panel finds that the claimant’s narrative and testimony were internally consistent and plausible. There were no relevant contradictions or omissions that go to the core of the claim.

[17] The allegations are supported by personal documents in Exhibit 4 that the panel finds credible. Exhibit 4 includes identity and claim-related documents such as: copies of his Russian passport, his Afghan national identity card, his marriage certificate, identity documents for his wife and children, and documents related to his US immigration detention and release. Together, these documents corroborate key elements of the claimant’s narrative.

[18] The panel accepts the evidence as establishing, on a balance of probabilities, the claimant’s subjective fear of persecution, including arbitrary arrest and torture, if he returns to either Russia or Afghanistan, because he is a perceived opponent of the Putin regime for evading the draft, and a perceived opponent of the Taliban because of his imputed political opinion.

Objective Basis

Russia

[19] The panel has reviewed the objective documentary evidence on country conditions in Russian in the National Documentary Package of 31 May 2024 (Exhibit 3.1).

[20] The following excerpts from Item 2.1 – the 2023 Department of State Human Rights Report for Russia – paints a disturbing picture of human rights in Russia and the serious risks to the lives of anyone perceived as opposing the Putin regime, as well as the systematic racial and ethnic violence and discrimination against foreigners in Russia:

“The Russian Federation has a highly centralized, authoritarian political system dominated by President Vladimir Putin. The bicameral Federal Assembly consists of a directly elected lower house (State Duma) and an appointed upper house (Federation Council), both of which lack independence from the executive. The 2018 presidential election and the September 2021 parliamentary elections were marked by accusations of government interference and manipulation of the electoral process, including the exclusion of meaningful opposition candidates. …

Outside of human rights abuses committed by Russia in relation to its invasion of Ukraine, significant human rights issues included credible reports of: extrajudicial killings, including of lesbian, gay, bisexual, transgender, queer, and intersex persons in Chechnya by local government authorities; enforced disappearances by or on behalf of government authorities; pervasive torture by government law enforcement officers that sometimes resulted in death and occasionally involved sexual violence or punitive psychiatric incarceration; harsh and life-threatening conditions in prisons; arbitrary arrest and detention; political and religious prisoners and detainees; transnational repression against individuals located outside the country; severe arbitrary interference with privacy; providing support to an armed group that recruited or used child soldiers; severe suppression of free expression and media, including violence against journalists and the use of “anti extremism” and other laws to prosecute peaceful dissent and members of religious minority groups; severe restrictions on internet freedom; severe suppression of the freedom of peaceful assembly and the freedom of association, including overly restrictive laws on “foreign agents” and “undesirable foreign organizations”; severe restrictions of religious freedom; refoulement of refugees; inability of citizens to change their government peacefully through free and fair elections; severe limits on participation in the political process, including restrictions on opposition candidates’ ability to seek public office and conduct political campaigns, and on the ability of civil society to monitor election processes; widespread corruption at all levels and in all branches of government; serious government restrictions on, including closure and harassment of, domestic and international human rights organizations; lack of investigation of and accountability for gender-based violence and violence against women; crimes involving violence or threats of violence targeting members of ethnic and religious minority groups; trafficking in persons; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, and intersex persons; crimes involving violence or threats of violence targeting persons with disabilities; and the worst forms of child labor. The government failed to take adequate steps to identify, investigate, prosecute, or punish most officials who committed abuses and engaged in corruption, resulting in a climate of impunity….(pp. 1-2).

National Security: Authorities cited laws against terrorism or protecting national security to arrest or punish critics of the government or deter criticism of government policies or officials. There were reports that critics of the government’s counterterrorism policies were themselves charged with “justifying terrorism.” In October authorities charged opposition politician Vladimir Kara Murza with treason, apparently on the basis of his criticism of Kremlin policies in public remarks….(p. 31)

Systematic Racial and Ethnic Violence and Discrimination: The law prohibits discrimination based on nationality, but according to a 2017 report by the UN Committee on the Elimination of Racial Discrimination, officials discriminated against minorities, including through “de facto racial profiling, targeting in particular migrants and persons from Central Asia and the Caucasus.” Activists reported that police officers often stopped individuals who looked foreign and asked them for their documents, claiming that they contained mistakes even when they were in order, and demanded bribes. There were reports Russian authorities disproportionately mobilized members of non-Russian ethnic groups to fight in Russia’s war against Ukraine. Hate crimes targeting ethnic minorities continued to be a problem….(pp. 56-57)

Freedom of expression : “While the constitution provides for freedom of expression, including for the press and other media, the government increasingly restricted this right. Federal, regional, and local authorities used procedural violations and restrictive or vague legislation to detain, harass, or prosecute persons who criticized the government or institutions it favored…

On March 5, President Putin signed into effect laws that criminalize independent war reporting and “spreading false information” about Russia’s war in Ukraine, which provides for sentences of up to 15 years in prison. On March 23, the Duma adopted amendments to the laws, effectively expanding the ban on criticizing the armed forces to banning criticism of all government actions. Authorities used the new laws widely and indiscriminately to severely suppress freedom of expression, including by members of the press.

Independent rights group OVD-Info reported that following the enactment of new censorship laws in March, as of December 20, authorities initiated 379 criminal cases for antiwar speech, including charges of spreading “false information” and “discrediting the military.” For example, journalist for the RusNews website Maria Ponomarenko was arrested in April for “discrediting” the Russian armed forces with “fake” social media posts. Ponomarenko was held in pretrial detention following her arrest until November 14, when she was placed under house arrest. She faced up to 10 years in prison for a Telegram post concerning the March 16 Russian air strike on a theater in the Ukrainian city of Mariupol that killed hundreds of civilians.

Authorities continued to misuse the country’s expansive definition of extremism, under which citizens may be punished for certain types of peaceful protests, affiliation with certain religious denominations, and even certain social media posts, as a tool to stifle dissent. According to the SOVA Center for Information and Analysis, in 2020 authorities “inappropriately initiated” 145 new cases against individuals under anti extremism laws, including for exercising free speech on social media and elsewhere or for their religious beliefs.

The law prohibits the dissemination of false “socially significant information” online, in mass media, or during protests or public events, as well as the dissemination of “incorrect socially meaningful information, distributed under the guise of correct information, which creates the threat of damage to the lives and health of citizens or property, the threat of mass disruption of public order and public security, or the threat of the creation of an impediment to the functioning of life support facilities, transport infrastructure, banking, energy, industry, or communications.” (pp.24-25)

[21] The EU Agency for Asylum explores some of the realities of military service in Russia in two NDP items: Item 8.1 – Country of Origin Information. The Russian Federation: Military Service (December 2022) and Item 8.4 – Russian Federation: Treatment of military deserters by state authorities since the February 2022 invasion of Ukraine (April 2022). These documents indicate that desertion and objection to military service is a sensitive topic for Russia authorities, and no official data is reported on by the state. All Russian males between 18 and 27 years old must serve for one year in the military, and recruitment campaigns are held annually in spring and fall. Evading conscription is punishable by fines and imprisonment. Reports suggest that authorities have sent under-trained draftees into the front lines of combat in Ukraine. Other reports indicate large-scale desertions with varying accounts of retribution – all include minimum of fines, lengthy prison sentences, and some reports of forced disappearances and killings for deserters on the lines of war. Evidence indicates hundreds of thousands have fled Russia since the onset of the war to avoid being forcibly recruited into the conflict. And that Russia has expanded the criminal code sections relating to military evasion.

[22] A recent report by the United Kingdom Home Office, “Country Policy and Information Note. Russian Federation: Military Service.”, dated March 19, 2024, points to events having shifted between July 2022 and July 2023. Specifically, paragraph 15.7 titled “Implementation and irregularities of call-up process”, indicates that:

“The Kremlin is openly not adhering to its promised conditions for partial mobilization. ‘Kremlin quotas will likely force local officials to mobilize men regardless of their military status and will likely incentivize the mobilization of ethnically non-Russian and migrant communities at a disproportionate rate.’”

[23] The same UK Home Office report at paragraph 15.8 (“Ethnic Minorities”) goes on to cite evidence that, notwithstanding official assurances that only those who had previously served in the military would be called up for service in Ukraine, mobilizations notices were, in fact, delivered much more broadly and indiscriminately to men between the ages of 18 and 50.

“Despite assurances that Russia would be seeking men who had recently served in the army and had combat experience, activists pointed to a number of cases of men in their 50s receiving draft notices. ‘One woman said a 52-year-old relative had been delivered a povestka shortly before the president announce the draft the previous day. Yanina Nimayeva, a journalist from Ulan-Ude in Buryatia, complained that her 38-year-old husband had received a draft notice despite never having served in the army’”

[24] Moreover, subparagraphs 15.8.2, 15.8.3, and 15.8.4 indicates that the mobilization targets ethnic minorities who are disproportionately affected.

Afghanistan

[25] The panel has reviewed the extensive objective documentary evidence on country conditions in Afghanistan in the National Documentary Package of 31 May 2024 (Exhibit 3). The evidence confirms there is no democracy, no rule of law, and no respect for basic human rights and freedoms in the Taliban-dominated country.

[26] The following are highlights of Item 1.5 – the UNHCR Guidance Note on the International Protection Needs of People Fleeing Afghanistan (February 2023):

1.UNHCR continues to call on all countries to allow civilians fleeing Afghanistan access to their territories, to guarantee the right to seek asylum, and to ensure respect for the principle of non-refoulement at all times.

2.Based on available reports about widespread human rights violations in Afghanistan, including accounts provided to UNHCR by Afghans in flight and those already abroad as part of UNHCR monitoring activities, many Afghans will have international protection needs.

3.In light of the wide range of increasingly restrictive measures imposed by the de facto authorities on women and girls in Afghanistan in violation of their human rights, UNHCR considers that Afghan women and girls are likely to be in need of international refugee protection under the 1951 Refugee Convention.

4.Other profiles with increased refugee protection needs compared to the situation prior to the events of 15 August 2021 include:

a. Afghans associated with the former government or with the international community in Afghanistan, including former embassy staff and employees of international organizations;
b. Former members of the Afghan national security forces and Afghans associated with the former international military forces in Afghanistan;
c. Journalists and other media professionals; human rights defenders and activists, as well as defence lawyers supporting them;
d. Members of minority religious groups and members of minority ethnic groups, including the Hazaras;
e. Afghans of diverse sexual orientations, gender identities and/or gender expression.

This list does not presume to be an exhaustive enumeration of all profiles of Afghans who may have a well-founded fear of persecution. Each application for international protection should be assessed on its merits, taking into account the evidence provided by the applicant as well as all relevant country of origin information to the extent available. UNHCR notes that family members and others closely associated with persons at risk of persecution are frequently at risk themselves.

5.Given the obstacles to information gathering and reporting in Afghanistan, UNHCR calls on decision-makers on asylum applications by Afghan nationals to refrain from drawing adverse inferences from the absence of verified country of origin information to support and corroborate all aspects of the evidence provided by the applicant.
6.As the situation in Afghanistan is volatile and may remain uncertain for some time to come, coupled with a large-scale humanitarian emergency in the country, UNHCR continues to call on States to suspend the forcible return of nationals and former habitual residents of Afghanistan, including those who have had their asylum claims rejected.

[27] The UNHCR Guidance Note, together with other country documentary evidence, makes it clear that, among other things, the list of persons facing a serious risk of persecution as perceived opponents of the Taliban is steadily expanding.

[28] Item 2.1 – the 2023 US Department of State Human Rights Report – includes the following disturbing thumbnail picture of human rights in Afghanistan under the Taliban in its introduction, with extensive details throughout the remainder of the Report.

“There was significant deterioration in women’s rights during the year due to edicts that further restricted access to education and employment, with a net result that women were increasingly confined to domestic roles. No decree or directive pertaining to women and girls’ education, or work, was reversed or softened. The Taliban did not purport to formally change existing laws as legislated by the Republic-era government; however, they promulgated edicts that contradicted those laws and were inconsistent with Afghanistan’s obligations under international conventions.

Significant human rights issues included credible reports of: killings; severe physical abuse; harsh and life-threatening prison conditions; unjust detentions and abductions, including disappearances; serious problems with independence of the judiciary; political prisoners or detainees; arbitrary or unlawful interference with privacy; punishment of family members for alleged offenses of a relative; serious abuses in a conflict, including widespread civilian deaths or harm, disappearances and abductions, and severe physical abuse; unlawful recruitment or use of children in armed conflict by the Taliban; serious restrictions on freedom of expression and media freedom, including detentions of and violence against journalists, and censorship; serious restrictions on internet freedom; substantial interference with freedom of peaceful assembly and freedom of association; restrictions on religious freedom; restrictions on freedom of movement and residence and on the right to leave the country; inability of citizens to change their government peacefully through free and fair elections; serious and unreasonable restrictions on political participation; serious corruption; serious restrictions on and harassment of domestic and international human rights organizations; extensive gender-based violence, including domestic and intimate partner violence, sexual violence, child, early, and forced marriage, and other harmful practices; substantial barriers to accessing sexual and reproductive health services; crimes involving violence or threats of violence targeting members of ethnic and religious minority groups (Hazara, Sikh, Shia, Salafi, Ahmadi, Hindu, and Christian groups); trafficking in persons, including forced labor; existence and enforcement of laws criminalizing consensual same-sex sexual conduct; crimes involving violence against lesbian, gay, bisexual, transgender, queer, or intersex persons; significant restrictions on workers’ freedom of association; and the existence of the worst forms of child labor.

There was widespread disregard for the rule of law and official impunity for those responsible for human rights abuses. The Taliban and ISIS-K reportedly engaged in child recruitment and used child soldiers younger than 12 during the year. Armed groups threatened, robbed, kidnapped, and attacked foreigners, medical and nongovernmental organization workers, and other civilians. Members of the Taliban reportedly killed persons in retaliation for their association with the pre-August 2021 government.”

[29] Having considered the totality of the documentary evidence for both Russia and Afghanistan, the panel finds that the claimant has established a well-founded fear of persecution because of his imputed political opinion as a perceived opponent of the Putin regime if he returns to Russia, and the Taliban because of his imputed political opinion, if he returns to Afghanistan.

State Protection

[30] As the agents of persecution are the authorities of the Putin regime controlling Russia, and the Taliban that currently control Afghanistan, the panel finds there is no state protection in the circumstances of this claim in either Russia or Afghanistan. The panel therefore finds that the claimant has rebutted the presumption of state protection in both Russia and Afghanistan with clear and convincing evidence.

Internal Flight Alternative

[31] The panel has considered whether a viable internal flight alternative exists for the claimant. The documentary evidence indicates that the Putin security forces operate similarly throughout Russia, as do the Taliban throughout Afghanistan. The panel finds that there is a serious possibility of persecution throughout Russia and Afghanistan and that the claimant does not have viable internal flight alternatives within either Russia or Afghanistan.

CONCLUSION

[32] The panel determines that the claimant faces a serious possibility of persecution because of his imputed political opinion as a perceived opponent of the Putin regime in Russia, and of the Taliban in Afghanistan because of his imputed political opinion, if he returns to either Russia or Afghanistan. Therefore, he is a Convention refugee pursuant to section 96 of the IRPA.

[33] The claim is accepted.

——— REASONS CONCLUDED ———