Citation: 2019 RLLR 123
Tribunal: Refugee Protection Division
Date of Decision: April 26, 2019
Panel: Z. Kaderali
Counsel for the Claimant(s): Stephen B Watt
Country: Russia
RPD Number: TB7-20928
ATIP Number: A-2021-00256
ATIP Pages: 000030-000033
REASONS FOR DECISION
[1] The claimant, [XXX], is a citizen of Russia. He claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)1.
ALLEGATIONS
[2] The details of the alleged circumstances are found in the claimant’s Basis of Claim (BOC) form and updated narrative.2 The claimant is a 33 year old male, and a citizen of Russia. He indicates that he fears return to Russia on the grounds of his sexual orientation. He indicates that he met his partner in March 2015, and they were married in Canada in December 2017. The claimant advises that he made an asylum claim in the United States in June 2016, and came to Canada on [XXX] 2017.
DETERMINATION
[3] The panel finds the claimant is a Convention refugee pursuant to section 96 of the IRPA, on the grounds of his sexual orientation. In coming to this determination, the panel has considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.3
ANALYSIS
Identity
[4] The claimant’s identity has been established through a copy of his passport found in Exhibit 1.4 The panel is satisfied, on a balance of probabilities, that the claimant is who he says he is, and is a citizen of Russia.
Credibility & well-founded fear
[5] Assessed in totality, the panel found the claimant to be a credible witness who testified in a straightforward manner. Looking at the totality of the evidence the panel finds there is sufficient credible and trustworthy evidence establishing that the claimant is a gay man, on a balance of probabilities. In coming to this determination, the panel has considered the following. As the Court explained in Maldonado, the sworn testimony of the claimant is presumed to be true unless a valid reason exists to doubt its truthfulness.5 He testified to his relationship with his spouse, who also attended the hearing, and provided testimony. Several corroborative documents are found in Exhibits 6 and 7 including (but not limited to) a letter from the claimant’s spouse, the claimant’s US asylum application, and his marriage license.6 The panel has further reviewed the US biometrics which were returned with “no match”.7 In light of the documentation before the panel including the claimant’s US asylum application, the panel places little weight on the biometrics. The panel has reviewed the two letters from the claimant’s US counsel indicating his written request made by his US counsel on his behalf to withdraw his US asylum application8. The panel finds, on a balance of probabilities, that the claimant currently does not have permanent residence in the United States, and that exclusion under article 1E of the United Nations Convention Relating to the Status of Refugees (article lE) is not an issue in these particular circumstances.
[6] Objectively, as indicated in item 2.1 of the National Documentation Package (NDP) for Russia, “[o]penly gay men were particular targets of societal violence, and police often failed to respond adequately to such incidents.” Further, “LGBTI persons reported significant societal stigma and discrimination, which some attributed to official promotion of intolerance and homophobia.”9 The panel finds there is a serious possibility of persecution should the claimant return to Russia.
State protection and internal flight alternative
[7] The panel finds state protection would not be reasonably forthcoming in the claimant’s circumstances. As indicated in item 6.1 of the NDP, sources indicate that “police officers are not trained on LGBT issues and “most of them have the same stereotypes about LGBT people as the majority of the Russian citizens” (23 Oct. 2013). Further, as indicated in item 6.7 of the NDP, “[d]iscrimination against the LGBT community in Russia is widespread and severe, including by the authorities.”10 The panel finds that there is not a viable internal flight alternative, and that these conditions exist throughout Russia.
CONCLUSION
[8] The panel concludes that the claimant is a Convention refugee and accepts his claim.
(signed) Z. Kaderali
April 26, 2019
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96, 97(1)(a) and 97(1)(b).
2 Exhibit 2, Basis of Claim Form (BOC) TB7-20928; Exhibit 4, Narrative (45 paragraphs).
3 Chairperson’s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. Effective May 1, 2017.
4 Exhibit 1, Package of Information from the referring CBSA/CIC.
5 Maldonado v. Canada (Minister of Employment and Immigration), (1980)] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
6 Exhibit 6, Claimant’s Documentary Disclosure; Exhibit 7, Marriage certificate.
7 Exhibit 5, US Biometrics no match.
8 Exhibit 8, Letters from US counsel (added post-hearing).
9 Exhibit 3, National Documentation Package (NDP) for Russia – January 31, 2019 Version.
10 Ibid., item 6.1 and 6.7.