VC2-06157

RAD File / Dossier de la SAR: VC2-06157 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision November 24, 2022 Date de la décision Panel Jennifer Pollock Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister K. Kang Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for dismissing the Minister Appellant's appeal concerning XXXX XXXX XXXX (the Respondent) and confirming the Refugee Protection Division's (RPD) decision, for other reasons, that he is a Convention refugee. [2] The Respondent is a Ukrainian citizen. He left Ukraine as a minor with his parents, and he lived in the United States (US) as a Permanent Resident (PR) until XXXX 2014. His US PR card expired in XXXX 2017.1 He was self-represented when he wrote his Basis of Claim (BOC) form in April 2021. In February 2022, the Russian state launched a full-scale unilateral invasion of Ukraine. At his June 2022 RPD hearing, the Respondent continued to be self-represented. He alleged a fear of returning to Ukraine based on his conscientious objection to military service.2 [3] The RPD issued a positive decision, accepting the Respondent's claim. The RPD found that the Respondent no longer has PR in the US, and he is not excluded under Article 1E. The RPD accepted that the Respondent is credible, and that he has a nexus based on his religion. The RPD also found that the Respondent is a conscientious objector, he faces a serious possibility of persecution in Ukraine, and he does not have access to state protection or an Internal Flight Alternative (IFA) in Ukraine. On appeal, the Minister Appellant argues that the RPD's assessment of the Respondent's status as a conscientious objector is incorrect. The Respondent continues to be self-represented on appeal. I raised a new issue on appeal, and I invited submissions on whether the Respondent has established a claim based on his nationality. [4] The Refugee Appeal Division's (RAD) role is to decide if the RPD made the correct decision.3 Having independently assessed all the evidence, I find that the new issue is determinative. I find that the Respondent faces a serious possibility of persecution based on his Ukrainian nationality, he does not have access to operationally adequate state protection or an IFA in Ukraine, and he is a Convention refugee. DECISION [5] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Respondent is a Convention refugee. PROCEDURAL ISSUES AT THE RAD [6] The Minister Appellant's Record was received by the RAD on July 15, 2022, accompanied by proof of service on the Respondent.4 According to RAD Rule 10(6), the Respondent must provide a written notice of intent to respond, together with the Respondent's Record, no later than 15 days after the Respondent received the Minister Appellant's Record.5 The Respondent did not provide any correspondence by this deadline, or by the date of these Reasons. [7] On October 25, 2022, I provided notice of the following new issues: * Whether the Respondent has a nexus to a Convention ground based on his Ukrainian nationality, and whether he faces a forward-looking serious possibility of persecution in Ukraine on this basis. * Whether the Respondent has established a personal risk to life, or of cruel and unusual treatment or punishment, upon return to Ukraine.6 [8] The notice also advised that I would consider the most recent National Documentation Package (NDP) for Ukraine from June 30, 2022.7 The Minister Appellant disclosed part of the United Kingdom (UK) Home Office Country Policy and Information Note Ukraine: Military service Version 8.0 June 2022. I disclosed the complete report.8 I also disclosed the United Nations High Commissioner for Refugees (UNHCR) Guidelines on International Protection No. 12: Claims for refugee status related to situations of armed conflict and violence.9 [9] The Minister Appellant provided the following response: The Minister would like to amend his submission in paragraph 17 of his Memorandum of Argument, which reads: "17. The Minister submits that the risk of violence and even human rights violations by Russian forces are risks of a general nature, and therefore are not grounds to find that the Respondent is a person referred to in section 96 or in section 97 of the Immigration and Refugee Protection Act (IRPA)." Accordingly, the Minister submits that there is a nexus to a Convention ground referred to in section 96 of IRPA based on the Respondent's Ukrainian nationality, as Russia has targeted Ukrainians. According to National Documentation Package (NDP) items 1.37 and 2.8, invading Russian military forces have committed war crimes against Ukrainians, particularly in Ukrainian territories under siege or occupation. According to NDP item 1.13, there is evidence that the atrocities committed by the Russian military against Ukrainians are motivated by genocidal intent [emphases added].10 [10] I appreciate the Minister Appellant's openness to revisiting their position given the rapidly evolving conditions on the ground in Ukraine. I agree with the Minister Appellant's assessment. [11] The Minister Appellant also argues that state protection is a live issue in this appeal because Ukraine controls most of its territory.11 They also acknowledge that the state protection evidence is mixed and they are "open to the RAD's assessment on whether or not the Respondent faces a forward-looking serious possibility of persecution in Ukraine due to his nationality."12 I have considered the issues of state protection and well-founded fear in my Reasons, below. NEW EVIDENCE IS ADMITTED BUT DOES NOT JUSTIFY HOLDING A HEARING [12] The Minister Appellant has provided the following new evidence on appeal: a. UK Home Office, Country Policy and Information Note Ukraine: Military service Version 8.0 June 2022, partial excerpt; and b. UK National Offender Management Service, List of definitions used by the United Kingdom's National Offender Management Service, April 2013.13 [13] The Respondent has not submitted any new evidence on appeal. [14] While the IRPA contains restrictions on the nature of evidence submitted to the RAD by a person who is the subject of an appeal,14 no such restrictions apply to the Minister,15 nor do they apply to evidence submitted in response to the Minister's evidence.16 The key consideration is whether the evidence can be considered credible or trustworthy in the circumstances.17 [15] I may only hold an oral hearing where the accepted new evidence: i. Raises a serious issue with respect to the credibility of the person who is the subject of the appeal; and ii. Is central to the decision of the claim; and iii. If accepted, justifies allowing or rejecting the claim.18 [16] I find that Items (a) and (b) are admissible but do not require a hearing. The evidence in Items (a) and (b) is admissible but does not require a hearing [17] Item (a) is an excerpt of the UK Home Office Country Policy and Information Note Ukraine: Military service Version 8.0 June 2022.19 An older version of this report appears in the NDP for Ukraine that was before the RPD.20 The Minister Appellant argues that this updated report demonstrates that "despite the changed situation in Ukraine due to the war, it remains highly unlikely that a draft evader avoiding conscription or mobilization in Ukraine would face criminal or administrative proceedings for that act, even though prison sentences are provided for in law."21 Item (b) is the UK National Offender Management Service, List of definitions used by the United Kingdom's National Offender Management Service.22 The Minister Appellant argues that few draft evaders in Ukraine are imprisoned, and those who are jailed are sent to semi-open prisons "where prisoners may undertake community or paid work."23 [18] The Respondent has not replied to the Minister's appeal and does not challenge the credibility or trustworthiness of the Minister Appellant's evidence. I find that this evidence is from a reliable and trustworthy source, namely the UK government. Items (a) and (b) are admissible. [19] The Minister Appellant does not request a hearing.24 In my view, Items (a) and (b) do not require a hearing as they do not justify allowing or rejecting the claim. In addition, none of the new evidence on appeal raises a serious issue with respect to the Respondent's credibility. ANALYSIS Issues on appeal [20] The Minister Appellant argues that the RPD incorrectly determined that the Respondent's religiously motivated objection to compulsory military service in Ukraine is grounds to establish that he has a well-founded fear of persecution. They argue that the RPD erred, as follows: * In finding that "conscientious objectors are included in the Convention refugee definition", contrary to the Federal Court of Appeal's (FCA) decision in Ates;25 * In finding that the Respondent's religion, rather than his refusal to serve, would be the motive for the Ukrainian government's actions; and * In finding that the Respondent faces persecution due to the harsh and life-threatening conditions in Ukrainian prisons. The new evidence establishes that "out of 295 draft evaders in Ukraine in 2021, none were imprisoned, 8 persons were sent to "semi-open" prisons, 175 persons were given suspended sentences, and 73 were fined" and therefore "the Respondent's risk of imprisonment, and thereby his risk of ill treatment amounting to persecution, is demonstrably minimal and far below the balance of probabilities threshold required for the granting of Convention refugee status."26 [21] Considering the Minister Appellant's updated submission that the Respondent does have a nexus to the Convention based on his Ukrainian nationality,27 I find that the Respondent's well-founded fear on this Convention ground is the determinative issue on appeal. Even accepting, without finding, that the RPD erred in determining that the Respondent faces a serious possibility of persecution as a conscientious objector, I find that the Respondent has a well-founded fear of persecution upon return to Ukraine based on his nationality. The Respondent established his identity, and he is not excluded under Article 1E [22] The RPD found that the Respondent established his personal and national identity as a citizen of Ukraine.28 The RPD also found that the Respondent is no longer a PR in the US, he has no ability to return to the US, and he is not excluded under Article 1E.29 The Minister Appellant has also not identified any error in these findings. Having reviewed the entire Record, I have no reason to find otherwise on appeal. I find that the Respondent has established his personal and national identity, and he is not excluded under Article 1E. The Respondent is a credible witness [23] The RPD found that the Respondent is generally credible.30 The Minister Appellant has not identified any error in this finding, or any reason to doubt the Respondent's credibility. Having reviewed the entire Record, I have no reason to find otherwise on appeal. I find that the Respondent is credible and that he is subjectively fearful of returning to Ukraine. The Respondent has established a nexus to a Convention ground [24] In my independent assessment, I find that the Respondent has established a nexus based on his Ukrainian nationality. I agree with the Minister Appellant's position that Ukrainians are being targeted based on their Ukrainian nationality and that "there is evidence that the atrocities committed by the Russian military against Ukrainians are motivated by genocidal intent."31 [25] The Respondent was born in Ukraine, he speaks Ukrainian, and he is a Ukrainian national. In determining whether the Respondent has a nexus to the Convention ground of nationality, I have considered the perspective of his persecutors, the Russian state and its military agents in Ukraine.32 In March 2022, the International Criminal Court prosecutor indicated that he is prepared to investigate whether genocide had taken place during the Russian invasion of Ukraine.33 The objective evidence indicates that the Russian state is targeting Ukrainians based on their nationality and that there is a "pattern of atrocities from which an inference of intent to destroy the Ukrainian national group in part can be drawn."34 Specifically: The Ukrainian people share an internationally recognized nationality and a common identity. In fact, according to recent studies, the vast majority of Ukrainians self-identify as Ukrainian [...] Ukrainians are defined as a national group domestically and internationally, and thus constitute a protected group under the Genocide Convention. [...] The official Russian propaganda denying the existence of a Ukrainian national group implicitly designates those who consider themselves distinctly Ukrainian as deserving of punishment, either by threatening the unity of Russia, and thus guilty of treason, which Putin declared to be "the gravest crime possible" [...] As the invasion continues, high-level officials, and State-run media commentators are painting Ukrainians more broadly in dehumanizing terms to justify atrocities. On March 17, 2022, [State Duma Deputy Chairman Pyotr] Tolstoy appeared on Channel One and argued that Russia had "lost at least one generation of Ukrainians. The youth have been zombified." On March 26, 2022, the influential propagandist Margarita Simonyan asserted, "it's no accident we call them Nazis ... What makes you a Nazi is your bestial nature, your bestial hatred and your bestial willingness to tear out the eyes of children on the basis of nationality," adding that "a significant part of Ukraine, of the Ukrainian people, turned out to be in the grip of a Nazi frenzy." Increasingly, such propaganda is being used to justify atrocities beyond the battlefield. The Ukrainian civilian population and elites are being described to Russians as their mortal enemies, some of whom must be "liquidated" [...] ... "Ukrainism is ... a subordinate element of a different and alien civilization" [...] [emphases added]35 [26] This dehumanizing rhetoric is significant. It indicates that, in the minds of the Russian state and its military agents, Ukrainian nationals are targeted by reason of their nationality. This objective evidence distinguishes the facts before me from the facts in Sherriff, where the Federal Court found that there was "no bases to support the contention that [the Applicant] are being persecuted because of their 'nationality'."36 In the Respondent's case, there is recent, credible, and compelling objective evidence establishing that Ukrainians are being targeted based on their nationality. [27] In the UNHCR's Guidelines on International Protection No. 12: Claims for refugee status related to situations of armed conflict and violence, the UNHCR indicates that armed conflicts which initially appear indiscriminate may be targeted at identifiable groups.37 This is the case where "entire groups or populations may be at risk of persecution, leaving each member of the group at risk."38 Specifically: Situations of armed conflict and violence may be rooted in, motivated or driven by, and/or conducted along lines of race, ethnicity, religion, politics, gender or social group divides, or may impact people based on these factors. In fact, what may appear to be indiscriminate conduct (i.e. conduct whereby the persecutor is not seeking to target particular individuals), may in reality be aimed at whole communities or areas whose inhabitants are actual or perceived supporters of one of the sides in the situation of armed conflict and violence. Rarely are modern-day situations of armed conflict and violence characterised by violence that is not in one way or another aimed at particular populations, or which does not have a disproportionate effect on a particular population, establishing a causal link with one or more of the Convention grounds [emphasis added].39 [28] I acknowledge that many Ukrainians share the Respondent's risk. However, this does not mean that the Respondent has not established a nexus, or that his claim should instead be assessed under subsection 97(1)(b) of the IRPA.40 While generalized risk defeats a 97(1)(b) claim, it should not be imported into the analysis of section 96 claims or limit the scope of Convention refugee protection. There is no requirement for the Respondent to show that he is more at risk than others who are also at risk by reason of their nationality, a Convention ground. In Salibian the FCA held: In the context of claims derived from situations of generalized oppression, therefore, the issue is not whether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political status, then she is properly considered to be a Convention refugee [emphasis added].41 [29] Having independently assessed the evidence, I find there is a nexus between the harm feared and the Respondent's Ukrainian nationality. He is not just a victim of indiscriminate armed conflict. The Respondent faces a serious possibility of persecution in Ukraine [30] Having independently assessed all the evidence, I find that the Respondent faces a serious possibility of persecution in Ukraine, and that his claim is well-founded. [31] In Salibian, the FCA held: (1) the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future; (2) the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged; (3) situation of civil war in a given country is not an obstacle to a claim provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or, even, by all citizens on account of a risk of persecution based on one of the reasons stated in the definition; and (4) the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin ... [emphasis added].42 [32] The conflict in Ukraine is a large-scale military invasion of a sovereign state by a foreign country in violation of international law.43 The FCA's holding in Salibian indicates that a Claimant who fled their country because of armed conflict can, in some circumstances, satisfy the requirements for Convention refugee protection.44 I find this to be the case on the facts before me. The Respondent's claim is based on the treatment of similarly situated people in Ukraine who have been targeted by the Russian state based on their Ukrainian nationality. This fear is felt by a group to which he is associated (Ukrainian nationals) and based on a Convention ground (nationality). [33] In February 2022, the Russian government launched an armed attack on Ukraine, which has "led to a grave deterioration in the human rights situation across the country."45 Russian armed forces have used "explosive weapons with wide area effects in populated areas, including shelling from heavy artillery and multiple launch rocket systems, missile, and air strikes."46 There are "strong indications that serious violations of international humanitarian law (IHL) and gross violations of international human rights law have occurred in the course of the conflict."47 The documentary evidence establishes that Russian forces are engaging in war crimes by targeting the civilian population.48 In addition to the loss of civilian life, "tens of thousands of civilian objects have been damaged or destroyed in Ukraine, including houses, multi-storey residential buildings, administrative buildings, penitentiary institutions, police stations, medical and education facilities, water stations and electricity systems, with disastrous direct and indirect effects on civilians."49 Russian forces have also disappeared and summarily executed Ukrainian civilians.50 [34] Having independently assessed all the evidence, I find that the Respondent faces a serious possibility of persecution upon return to Ukraine, and that his claim is well-founded. The Respondent does not have access to adequate state protection or a viable IFA in Ukraine [35] The RPD found that the Respondent does not have access to state protection or a viable IFA in Ukraine.51 On appeal, the Minister Appellant argues that Ukraine controls most of its territory and state protection is a live issue.52 However, they acknowledge that the evidence is mixed and that they are open to the RAD's assessment.53 In my independent assessment, I find that the Respondent does not have access to adequate state protection or a viable IFA in Ukraine. [36] Ukraine is "a country at war, with military priorities taking precedence over others."54 Specifically, "policing, investigative and forensic capacities are stretched to their limits given the scale of the crimes and their nature" and "peacetime capacities are just not sufficient."55 There are also "challenges around collection of huge amounts of evidence compounded by the poor crime scene administration" and "no infrastructure for international forensic experts to carry out their work effectively."56 In addition, "the Ukrainian legal framework may not be fit for the purpose of investigating and prosecuting war crimes and crimes under international law, including violations of international humanitarian law."57 The preponderance of the objective evidence indicates that the Ukrainian state is unable to protect its citizens due to the ongoing and extensive Russian invasion. I find that the presumption of operationally adequate state protection is rebutted. [37] I further find that the Respondent does not have access to a viable IFA in Ukraine. In its March 2022 Position on Returns to Ukraine, the UNHCR notes that the situation is volatile "in the entire territory of Ukraine" and that it "does not consider it appropriate to deny international protection to Ukrainians and former habitual residents of Ukraine on the basis of an internal flight or relocation alternative."58 Having independently assessed all the evidence, I agree. I find that there is no viable IFA for the Respondent in Ukraine. CONCLUSION [38] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Respondent is a Convention refugee. (signed) Jennifer Pollock Jennifer Pollock November 24, 2022 Date 1 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 129. 2 RPD hearing transcript, June 24, 2022, at pp. 13-14. 3 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 4 Exhibit M-2, Minister Appellant's Record. 5 Refugee Appeal Division Rules, SOR/2012-257, Rule 10(6). 6 Exhibit RAD-1, RAD's Notice of a New Issue, October 25, 2022. 7 Exhibit RAD-2, National Documentation Package (NDP) for Ukraine (30 June 2022). 8 Exhibit RAD-1, RAD's Notice of a new issue, October 25, 2022, at pp. 1-48. 9 Exhibit RAD-1, RAD's Notice of a new issue, October 25, 2022, at pp. 49-67. 10 Exhibit M-3, Minister Appellant's Response to the RAD's New Issue Notice, November 9, 2022, at paras. 3-6 [emphases added]. 11 Exhibit M-3, Minister Appellant's Response to the RAD's New Issue Notice, November 9, 2022, at paras. 7-8. 12 Exhibit M-3, Minister Appellant's Response to the RAD's New Issue Notice, November 9, 2022, at para. 9. 13 Exhibit M-2, Minister Appellant's Record, New Evidence, at pp. 24-29. 14 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 110(4). 15 IRPA, at ss. 110(5), 171(a.5). 16 IRPA, at ss. 110(5). 17 IRPA, at ss. 171(a.3). 18 IRPA, at ss. 110(6). 19 Exhibit M-2, Minister Appellant's Record, at pp. 24-27. 20 Exhibit RPD-1, RPD Record, Exhibit 3.1, NDP for Ukraine (29 April 2022), Item 8.6. 21 Exhibit M-2, Minister Appellant's Record, Minister Appellant's Memorandum, at para. 26. 22 Exhibit M-2, Minister Appellant's Record, at pp. 28-29. 23 Exhibit M-2, Minister Appellant's Record, Minister Appellant's Memorandum, at paras. 24-25. 24 Exhibit M-2, Minister Appellant's Record, at p. 14. 25 Ates v. Canada (MCI), 2005 FCA 322, at paras. 1-2. 26 Exhibit M-2, Minister Appellant's Record, Minister Appellant's Memorandum, at para. 29. 27 Exhibit M-3, Minister Appellant's Response to the RAD's New Issue Notice, November 9, 2022, at para. 4. 28 Exhibit RPD-1, RPD Record, RPD Decision, at para. 14. 29 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 23-29. 30 Exhibit RPD-1, RPD Record, RPD Decision, at para. 32. 31 Exhibit M-3, Minister Appellant's Response to the RAD's New Issue Notice, November 9, 2022, at para. 6. 32 Chekroun v. Canada (MCI), 2013 FC 737, at para. 55. 33 Exhibit RPD-1, RPD Record, Exhibit 3.1, NDP for Ukraine (29 April 2022), Item 1.28, at p. 31. 34 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 1.13, at p. 2. 35 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 1.13, at pp. 12, 15, 17 [emphases added]. 36 Sheriff v. Canada (MCI), 2002 FCT 8, at para. 15. 37 UNHCR, Guidelines on International Protection No. 12: Claims for refugee status related to situations of armed conflict and violence, 2 December 2016, HCR/GIP/16/12 [UNHCR Guideline 12]. 38 UNHCR, Guideline 12, at para. 17. 39 UNHCR, Guideline 12, at para. 33 [emphasis added]. 40 IRPA, at ss. 97(1)(b). 41 Salibian v. Canada (MEI), 1990 CanLII 7978 (FCA), [1990] 3 FC 250, at p. 259, adopting a passage from James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths-Heinemann, 1991) [emphasis added]. 42 Salibian v. Canada (MEI), 1990 CanLII 7978 (FCA), [1990] 3 FC 250, at p. 258 [emphasis added]. 43 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 1.36, at p. 3. 44 Salibian v. Canada (MEI), 1990 CanLII 7978 (FCA), [1990] 3 FC 250, at p. 258; In this assessment I have also considered the decision of a Refugee Appeal Division colleague, VC2-00040, Roxane Vachon, May 6, 2022. 45 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 2.8, at para. 1. 46 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 2.8, at para. 1. 47 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 2.8, at para. 2. 48 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 1.8; Item 1.10; Item 1.13; Item 1.27. 49 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 1.27, at p. 26. 50 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 1.27, at pp. 20-22, 55-61. 51 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 55, 59. 52 Exhibit M-3, Minister Appellant's Response to the RAD's New Issue Notice, November 9, 2022, at paras. 7-8. 53 Exhibit M-3, Minister Appellant's Response to the RAD's New Issue Notice, November 9, 2022, at para. 9. 54 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 1.36, at p. 3. 55 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 1.36, at p. 4. 56 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 1.36, at p. 6. 57 Exhibit RAD-2, NDP for Ukraine (30 June 2022), Item 1.36, at pp. 6-7. 58 Exhibit RPD-1, RPD Record, Exhibit 3.1, NDP for Ukraine (29 April 2022), Item 1.23, at para. 8. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR: VC2-06157 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français