Citation: 2019 RLLR 143
Tribunal: Refugee Protection Division
Date of Decision: October 9, 2019
Panel: Charlotte Bell
Counsel for the Claimant(s): Lev Abramovich
Country: Ukraine
RPD Number: TB9-03821
Associated RPD Number(s): TB9-03897
ATIP Number: A-2021-00256
ATIP Pages: 0000140-000150
REASONS FOR DECISION
[1] [XXX] is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (hereafter “the Act” )1 by reason of his membership in a particular social group, namely civil rights activists. The [XXX] cause is gay rights activism in Ukraine.
[2] [XXX], his son, is claiming refugee protection pursuant to sections 96 and 97(1) of the Act by reason of his membership in a particular social group; namely, he identifies as gay.
[3] In reaching a decision, the panel has considered Chairperson’s Guideline 92 in relation to proceedings before the Immigration and Refugee Board of Canada involving sexual orientation and gender identity and expression.
ALLEGATIONS
[4] The claimants’ allegations are set out fully in their Basis of Claim (BOC) forms.3
[5] In summary, [XXX] is a citizen of Ukraine who fears persecution based on his sexual orientation, specifically as a gay male
[6] [XXX] is the father of the [XXX], and a civil rights activist working for gay rights in Ukraine. He fears persecution by reason of his civil rights activism.
[7] Both father and son have suffered physical violence, threats, and police indifference in Ukraine by reason of their membership in their particular social group.
DETERMINATION
[8] The panel finds that the claimants have established a serious possibility of persecution in Ukraine based on a Convention ground; namely, membership in a particular social group.
ANALYSIS
Identity
[9] The panel is satisfied, on a balance of probabilities, as to [XXX] and [XXX] personal identity and identity as nationals of Ukraine, based on the certified true copies of their Ukrainian passports in evidence.4
Credibility and Subjective Fear
[XXX]
[10] The panel questioned [XXX] first about the allegations set out in his BOC. The panel finds that the claimant was, on the balance, a credible witness. His testimony was consistent with the allegations set out in his BOC. He described his association with and the friends he had in the LGBT community, specifically those he had met at GenderZ. He discussed the activities and demonstrations that he had participated in there. He described his relationship with [XXX], how they met and started dating in March 2018, how they located the apartment in which they eventually moved into together. He also described beatings he had undergone, and produced medical reports supporting his injuries.
[11] One two occasions when [XXX] was attacked, the incident was reported to the police. In one attack, the police threatened to turn the accusation back on to [XXX], as his attacker claimed to be a victim who had counterattacked. In another incident the police pressured witnesses and kept them from giving statements confirming the attack.
[12] [XXX] was clear and cogent in his testimony that he would not feel safe in any part of Ukraine, and that police protection was not available to him or his father.
[13] [XXX] testimony supported his father’s claim. He described his father’s activism on behalf of the gay community in Ukraine. He recalled and gave the example of an incident he witnessed in which people active in fighting for gay rights were attacked; they were his friends and the police did not want to accept their statement as to what had happened to them “due to hate.” He feared for his father’s safety in Ukraine as his father was known as an activist fighting for gay rights.
[XXX]
[14] The panel also questioned [XXX]. The panel finds that the claimant was, on the balance, a credible witness. His testimony was consistent with the allegations set out in his BOC. [XXX] confirmed that his son is gay, and described how he and his son had discussed the son’s sexual orientation from the early realization of it.
[15] In his BOC [XXX] described his son’s struggle with being gay in Ukraine; the assaults which his son had suffered, the law firm he had retained to provide legal support for his efforts to advance protection for the gay community, the attack he himself had endured during a morning run when three men wearing uniforms beat him and tried to drag him into a minivan, the efforts he had made to seek protection and redress from the police, and the futility of these efforts.
[16] Although he had applied for and been granted a temporary visitor’s visa into Canada in [XXX] 2018, for both himself and his son, [XXX] did not leave Ukraine until [XXX], 2018. The panel questioned [XXX] as to why he had waited so long if he indeed feared persecution both on his own account and that of his son.
[17] [XXX] said that a child’s happiness comes first. His son had met a boy named [XXX] and loved him, and because the move to Canada, where they knew no one and would suffer considerable financial difficulties, would prove so difficult (it would not be possible for his wife and daughter to accompany them to Canada), he decided to stay and hope. He was concerned for his own safety but would not leave his son alone in Ukraine; and so they waited.
[18] In November 2018, his son and [XXX] were attacked by a group of people who were insulting their sexual orientation. [XXX] ran away and this ended [XXX] relationship with [XXX]. [XXX] became involved in pressing for a police investigation only to discover that one of the attackers was the son of [XXX]., the First Deputy Public Prosecutor of the claimants’ home city.
[19] [XXX] testified that [XXX] was a known criminal, is corrupt and takes bribes, and he produced media articles that support this assessment. [XXX]., seeking to disengage his own son from the allegations of assault, phoned and threatened [XXX]. [XXX] testified that not only does he fear returning to Ukraine by reason of the fact that he is a known gay rights activist, and gay rights activists are targeted in Ukraine, but also because [XXX]. would now have particular reason to harm him.
[20] [XXX] described what he referred to as the special relationship that police and prosecutors have in Ukraine, and the reason why, in his view, the bias will not soon change. He said that it was not a long time ago that the Criminal Code of the Soviet Union made it a criminal offence to be gay; and that gay persons were prosecuted and sent to psychiatric hospitals for “treatment”. These laws, it was his observation, are still ingrained in Ukrainian society.
[21] The panel has reviewed the articles that describe the corruption and violence surrounding the office of the Deputy Public Prosecutor and accepts that because of his involvement in the case in which the prosecutor’s son was implicated, [XXX] is at a heightened risk should he return to Ukraine.
[22] Finally, the panel notes that the claimants provided documentary evidence in support of their claims, most notably pictures and letters from the LGBT community in Ukraine, police reports, and medical reports.5 The panel finds these documents to be relevant and probative in support of both of the claimants’ allegations.
[23] In light of the testimony that the panel has found to be credible, and considering the documentary evidence, the panel finds, on a balance of probabilities, that the claimant [XXX] is gay, and that he experienced physical violence in Ukraine due to his sexual orientation.
[24] The panel also finds, in light of the testimony that the panel has found to be credible, and considering the documentary evidence, that, on a balance of probabilities, [XXX] is a civil rights activist advocating for gay rights who experienced physical violence and threats in Ukraine due to this activism.
Objective basis of the claim
[XXX]
[25] Having considered the country conditions documentation, the panel finds that there is an objective basis to what [XXX] fears in Ukraine.
[26] The objective documentary evidence indicates that the LGBTQ community in Ukraine faces bias and hostility6 and that discrimination against the LGBTQ community in Ukraine takes place in almost every area of life.7 Discrimination is considered to be frequently encountered in employment, education, healthcare and treatment by law enforcement authorities. Violence against individuals in the LGBTQ community is noted to be a significant human rights issue in Ukraine.8 While Ukraine was the first former Soviet State to decriminalize same-sex activity, social intolerance is noted to have gradually increased since that time.9
[27] Evidence in the National Documentation Package (NDP) for Ukraine suggests that violence against the LGBT community in Ukraine is on the rise:
Nash Mir’s monitoring network in 2018 documented 358 cases of actions motivated by homophobia / transphobia, discrimination and other violations of LGBT rights in Ukraine. 34 included events that happened in 2017, the rest- 324 cases – occurred in 2018. In comparison, previously in 2017 Nash Mir Center documented 226 cases. Such a sharp increase in the annual number of the reported LGBT rights violations, in our opinion, resulted from both increasing efficiency of the monitoring network activity and the real growth of violence against LGBT people by right-wing radical groups.10
[28] In light of the objective documentary evidence the panel finds that [XXX] has a well-founded fear of persecution in Ukraine based on his profile as a gay man.
[XXX]
[29] [XXX] provided documentary evidence to support his claim that gay activists were targeted in Ukraine.
[30] An article published in February 8, 2018, in the Gay Alliance Ukraine reported an attack by five masked men shouting “Sieg Heil” and “Death to Faggots” on four activists who were members of the “Gay Alliance Ukraine” organization. As a result of the attack two of them were taken to the hospital.11 A July 2018 World report dated July 1 2018 described as severe beating by unidentified assailants of a gay activist who was organizing a gay pride parade in Kryvyi Rih.
[31] The National Document Package, World Report 2019: Ukraine Human Rights Watch12 contains the following confirmation of Oleksandr’ s concerns for his safety as a human rights activist;
1. Authorities did not conduct effective investigations into numerous assaults against anti-corruption and other community activists. In November 2018, Kateryna Handzyuk, an anti-corruption activist, died from burn wounds inflicted in a July acid attack.
2. Members of groups advocating hate and discrimination carried out at least two dozen violent attacks, threats, or instances of intimidation against Roma people, LGBT people, and rights activists in several Ukrainian cities. In most cases, police failed to respond or effectively investigate.
In March, hate groups attacked events to promote women’s rights in Kyiv, Lviv, and Uzhgorod. In Kyiv, they physically assaulted participants while police looked on.
3. In May, hate groups disrupted an equality festival in Chernivtsi while local police failed to effectively protect participants. Also in May, hate groups in Kyiv disrupted an Amnesty International LGBT rights event in Kyiv. Police present took no action and made homophobic comments.
[32] In light of the objective documentary evidence the panel finds that [XXX] has a well-founded fear of persecution in Ukraine based on his profile as a gay rights activist.
State Protection
[33] The claimants bear the onus of establishing, with clear and convincing evidence, that adequate state protection would not be forthcoming to them, were they to return to Ukraine. Having considered all of the evidence, including circumstances particular to the claimants, the panel finds that they have met this burden.
[34] It is reported in the objective documentary evidence that incidents of homophobic violence are rarely investigated or prosecuted by the authorities in Ukraine and that there is no effective hate crime legislation in place.13 Significant problems are noted in the objective evidence with respect to law enforcement treatment of same-sex activity. Failure by the police to intervene in order to prevent violence and other crimes is also noted to be a problem, and it is also noted that the police sometimes use violence against people on the basis of their sexual orientation.14 The current United States Department of State (USDOS) human rights report for Ukraine indicates that there was sporadic violence against LGBTQ persons and that Ukrainian authorities often did not adequately investigate these cases or hold perpetrators to account.15 Crimes and discrimination against LGBTQ persons is noted to remain underreported and police open very view cases related to such acts.16 Further, it is reported that politicians at the local level sometimes voice opposition to LGBTQ rights and failed to protect individuals of the LGBTQ community.17
[35] In September 2017, [XXX] was attacked. The attack was homophobically motivated. He required medical attention. The traumatologist was obligated to report such incidents to the police and so on September 19th, 2017, the claimants were called into the District Department of Internal Affairs. The investigating officer made derogatory comments about [XXX] sexual orientation, and berated [XXX] for how “poorly” he had raised his son.
[36] When by October 2017 [XXX] went to check on the progress of the case, he was told that there was no news, the police had important work to do, and [XXX] should not disturb them with unnecessary requests.
[37] [XXX] retained a lawyer, and submitted a complaint to the prosecutor’s office. The investigator told [XXX] that he was being “very imprudent’ and that he “should be very careful”. The investigator suggested that [XXX] might have been the real aggressor and could be charged with the offence.
[38] On the advice of a lawyer, after this, [XXX] decide to stop pursuing the case.
[39] The panel finds, on a balance of probabilities, that adequate state protection would not be forthcoming to the claimants were they to return to Ukraine.
Internal Flight Alternative
[40] Given that homophobic attitudes and incidents of violence against LGBTQ people are reported to occur throughout the country, the panel finds that the claimants would face a serious possibility of persecution wherever they went in Ukraine. The panel therefore finds that there would be no viable IFA for the claimants should they return there.
CONCLUSION
[41] Having considered all of the evidence, the panel finds that the claimant [XXX] has established that he faces a serious possibility of persecution in Ukraine based on a Convention ground, namely his membership in a particular social group by virtue of being a gay man. Pursuant to section 96 of the Act, the panel finds that the claimant is a Convention refugee.
[42] The panel also finds that the claimant [XXX] has established that he faces a serious possibility of persecution in Ukraine based on a Convention ground, namely his membership in a particular social group by virtue of being a civil rights activist for the LGBTQ community. Pursuant to section 96 of the Act, the panel finds that the claimant is a Convention refugee.
[43] Accordingly, the panel accepts the claims of both [XXX] and [XXX].
(signed) C. Bell
October 9, 2019
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
2 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. Effective date: 1 May 2017.
3 Exhibit 2.1 & 2.2
4 Exhibit 1.
5 Exhibit 6 and 7
6 National Documentation Package (NDP) for Ukraine (31 July 2018), item 2.3.
7 NDP for Ukraine (30 April 2018), item 2.11.
8 NDP for Ukraine (31 July 2018), item 2.1.
9 NDP for Ukraine (31 July 2018), item 2.1.
10 NDP Ukraine (Nash Mir Center) 6.3
11 Exhibit 5 no. 6
12 NDP 2.5
13 NDP for Ukraine (31 July 2018), item 2.3.
14 NDP for Ukraine (31 July 2018), item 2.3.
15 NDP for Ukraine (31 July 2018), item 2.1.
16 NDP for Ukraine (31 July 2018), item 2.1.
17 NDP for Ukraine (31 July 2018), item 2.1