TB8-03157

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 File / Dossier de la SAR : TB8-03157 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 21, 2018 Date de la décision Panel James Sloan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Arthur I Yallen Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX claims that if returned to Ukraine, his country of nationality, he will be persecuted as a homosexual. The Appellant claims he and his partner, XXXX XXXX, were attacked in Ukraine due to their sexual orientation in February 2017 and, again, in May 2017. They required medical attention after each attack. After each attack they were interviewed by the police-though in neither case were charges brought. The Appellant claims that on August 16, 2017, his partner was killed in what the Appellant believes was a homophobic attack. On XXXX XXXX XXXX XXXX, the Appellant left Ukraine and travelled to Canada, where he made a refugee claim in early September 2017. [2] His claim for refugee protection was heard by the Refugee Protection Division (RPD) on November 30, 2017 and rejected on December 7, 2017. He now appeals to the Refugee Appeal Division (RAD). DETERMINATION [3] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), I set aside the decision of the RPD and find the Appellant to be a Convention refugee. The appeal is allowed. DETERMINATIVE ISSUE [4] The determinative issue in this case is whether state protection is available to the Appellant. NEW DOCUMENTS [5] The Appellant did not request the admission of new evidence. However, he has submitted an affidavit, dated February 12, 2018, in which he restates the allegations in his claim and makes reference to a variety of documents. The Appellant does not offer any argumentation as to how the affidavit might comply with subsection 110(4) of the IRPA as required by RAD Rule 3(3)(g)(iii).1 Nor is it evident on its face that the document complies with subsection 110(4). As such the affidavit is inadmissible. [6] As regards the documents attached to the affidavit-including a copy of the Appellant's Basis of Claim (BOC) narrative, his personal documents, country condition documents sourced by the Appellant, documents from the National Documentation Package (NDP), and a copy of the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression2-they already form part of the record. While the Appellant has doubtless included these documents-amounting to almost 400 pages-as a courtesy in order to make my task easier, I note that the content of the RPD Record, the documents in the NDP, and the Board's various guidelines are already before me. It is not necessary to include copies of these documents in the Appellant's Record. ANALYSIS [7] The RPD held that the Appellant had not rebutted the presumption of state protection and, in this regard, held that: a) because Ukraine is a democracy, the presumption of state protection is strong; b) the Appellant had not shown that he had exhausted all courses of action available to him for state protection in Ukraine and; c) there has been an improvement in the treatment of homosexuals in Ukraine, such that the authorities are able and willing to provide protection to homosexuals or other LGBT individuals. The Appellant argues that the RPD was in error in its findings. a) How "strong" is the presumption of state protection? [8] The RPD relied on the Federal Court of Appeal case of Kadenko for the proposition that "the law states that the burden to prove an absence of state protection is directly proportional to the level of democracy of that state."3 In my view, it is worth reproducing the full quote from Kadenko: When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.4 The RPD made reference to the system of governance in Ukraine-a legislature, an executive led by a directly elected president, a prime minister chosen through a legislative majority, and a judiciary-and noted that it had held elections in 2014 that were generally considered to be free and fair. It then stated: "Given that the Ukraine is a democratic country, the presumption of state protection is a strong one."5 [9] The Appellant argues that, while Ukraine is indeed a democracy, the RPD was incorrect to find a strong presumption of state protection there. The Appellant argues that the RPD erred by not entering into a more nuanced analysis of-to use the words of the Federal Court of Appeal-"the level of democracy" in Ukraine. Had it done so, the Appellant argues, it would have become clear that Ukraine is a democracy with numerous, significant shortcomings. [10] I agree. In view of the numerous, significant shortcomings of the democratic system in Ukraine,6 I find that the presumption that the Appellant has to rebut is not particularly "strong". b) Did the Appellant exhaust the available courses of action? [11] The RPD examined what contact with the authorities the Appellant had after each of the attacks and what steps the police took to protect him. The February 2017 attack [12] As regards the attack in February 2017, the RPD noted that the Appellant was unable to identify his attackers in detail as it was dark and the attackers wore hoodies. It noted that the Appellant received a letter from the police in April 2017 stating that they would not commence a criminal case because they could not identify the attackers. The letter also gave the Appellant the option of appealing the decision not to commence a criminal case. The RPD noted that there was no evidence that the Appellant had done so. It noted that "[a]n appeal process was available to the [Appellant] and he was notified of same: however it seems he did not take appropriate steps to exhaust this course of action."7 The RPD concluded that the fact the police did not pursue the case further was: not necessarily evidence that the Ukraine is unable or unwilling to protect the claimant. It is not possible for the police to apprehend, charge and convict a perpetrator in every case, especially in this case as the claimant did not know his attackers. No state is able to provide perfect protection to its citizens. Besides, in this case, the claimant, himself, could not describe his attackers, there were no witnesses and it was dark outside.8 [13] The Appellant argues that the RPD's finding that the Appellant did not try to appeal the police's decision not to commence a criminal case in relation to the February 2017 attack was a denial of natural justice because the RPD did not ask the Appellant if he had tried to appeal and, if not, why not. Had he been asked, he argues, he would have testified that he believed that there was no point in appealing because of the negative attitude of the police towards homosexuals and because complaints against the police in Ukraine may lead to reprisals. [14] I accept that the Appellant did not do everything he could have in relation to the February attack given that he opted not to appeal the decision of the police to close the investigation. However, I agree with the Appellant that fairness dictated that the Appellant be asked why he did not do so; he was not and, as such, I am unwilling to draw the inference that the Appellant was in any way remiss by not doing so. As to the reasons the Appellant now gives as to why he did not, I note that Legal Memorandum is not, of course, the place to introduce new evidence; as such, I am not in a position to accept the Appellant's assertion in the Legal Memorandum that he did not appeal the decision due to his view that he would jeopardise his safety or because he knew the police would not help. Nevertheless, the Appellant did testify in reply to other questions that he did not have confidence in the Ukrainian police and considered them to be homophobic.9 The May 2017 attack [15] As to the May 2017 attack, the RPD noted that the police took the statements of the Appellant and his partner; however, it noted that it was dark, the attackers were wearing hoodies, there were no witnesses and the victims could not identify their attackers. Based on the objective evidence, the RPD stated that the Appellant should have been provided with a copy of the police report in relation to the attack. However, it noted that the Appellant did not have a copy of the report and had not received a letter advising him that the matter was closed. Nor had he taken steps to obtain either document. The RPD concluded that it was quite possible that the May 2017 attack was still under investigation when the Appellant left Ukraine in XXXX 2017. Relying on the Montremayor case,10 the RPD held that the Appellant "must give the authorities sufficient opportunity to respond to the request for assistance."11 [16] The Appellant argues that the actions and attitude of the police were not those which could be said to demonstrate an interest in helping him. He argues that it was clear from the statements of the police-they advised the Appellant and his partner that if they "reconsidered their lives, then [they] would not have such problems" and they told the Appellant's parents that if they had paid more attention he would not have grown up as deviant-that their objective was not to pursue the matter. The Appellant testified that he believed the police never registered the complaint.12 When asked if they could still be investigating, he said he was sure they were not; they did not want to catch the attackers.13 [17] As to the second attack, I agree with the Appellant that the RPD's finding that the case may have still been under investigation was speculative. At the same time, I do not accept the Appellant's statement, given without any support, that he was sure that the police were not investigating him.14 That too was speculative. In light of the attitudes of the police officers and the fact that, aside from interviewing the Appellant, no measures were taken by the police in relation to an extremely serious attack, I do not agree with the RPD that to expect more of the Ukrainian police would be to set unrealistically high standards. Conclusion on the adequacy of the Appellant's efforts to seek state protection [18] Having outlined the steps taken (and not taken) by the Appellant, the RPD concluded that "[r]andom assaults" as suffered by the Appellant, where the assailants are unknown to the victims and there are no witnesses are difficult to effectively investigate and protect against-even for the most well-resourced police forces. "The Board should not impose on other states a standard of 'effective' protection that the police forces in our own country, regrettably, sometimes only aspire to."15 [19] As the Federal Court recently held, "a claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state, as a claimant cannot simply rely on a personal belief that state protection will not be forthcoming without testing it."16 However, in this case the Appellant did take steps after each of the attacks to seek protection-to no avail. Moreover, the Appellant's views as regards the willingness of the police to protect LGBT individuals has support in the NDP. A report therein speaks of evidence of law enforcement officials failing to protect sexual minorities and failing to "pursue investigations of hate crimes committed against LGBT individuals."17 The report continues: ...Many victims of attacks...do not report incidents or seek recourse for fear of their sexual orientation becoming public and the resulting reprisal and general societal hostility towards them. Those that do report these incidents are often ignored by state authorities or ridiculed with more anti-gay hostility. The true extent of violence against LGBT individuals in Ukrainian society is difficult to ascertain due to the lack of reporting through official government channels....Individuals are being denied the right to effective remedies and recourse by Ukraine because of its failure to investigate these crimes, and hold the perpetrators accountable. Additionally, government has not provided police trainings or instituted policies that would address high incidents of violence against sexual minorities.18 [20] Having regard to the nature of Ukraine's democracy and using the test outlined above from the Federal Court of Appeal-"the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her"-I find that the efforts made by the Appellant were adequate in the circumstances. c) The treatment of homosexuals in Ukraine [21] The treatment of the LGBT community in Ukraine is mixed. The RPD notes an overall improvement in 2016 in the social attitudes towards homosexuality in Ukraine.19 Nevertheless, the objective evidence indicates that there remains considerable scope for improvement: "In 2013, polls found that 63 percent of Ukrainians thought homosexuality was a mental illness, and 79.4 percent were opposed to homosexual relationships."20 A 2015 NGO report indicates that verbal and physical violence against LGBT people is increasing.21 The RPD pointed to the existence of gay clubs, gay businesses and an annual LGBT film festival as indicating progress in terms of Ukraine's acceptance of the LGBT community. At the same time, however, problems remain. For example, the objective documentation states that "[g]ay clubs and businesses in Kiev have been repeatedly attacked, and activists have been stalked, threatened and beaten."22 Moreover, it indicates that, in 2014, arsonists associated with an extreme right group set fire to a theater during the LGBT film festival. Despite the massive property damage and the risk to the filmgoers, the arsonists were only charged with disturbing the peace.23 [22] As the RPD correctly noted, same-sex activity has been legal in Ukraine since 199124 and, more recently, some significant efforts have been made to protect against discrimination based on sexual orientation.25 A provision in the labour code preventing discrimination based on sexual orientation or gender identity was recently added26 and a statement was made by the President in support of sexual minorities.27 However, I note that the final draft of the country's National Human Rights Strategy (released in 2015), which will guide the country's human rights policy until 2020, provides no protection of LGBT rights.28 [23] The RPD found that there was evidence that the authorities were able and willing to offer protection to the LBGT community. However, it did not make mention of the objective evidence (see paragraph 19 above) regarding some law enforcement officials failing to protect sexual minorities or pursue investigations of hate crimes committed against them. Nor did it mention a 2015 report, which stated: ... In recent years, a new pattern has appeared in the Ukrainian police's activities towards LGBT persons: the police have moved beyond the unlawful collection and use of information on local LGBT communities that come to their attention and begun proactively searching for gay men through the internet.... There is evidence that information gathered in this way is used by the police to blackmail gay men, extorting money in return for not initiating criminal or administrative proceedings, and forcing them to collaborate with the police to identify new victims among the local LGBT community....29 I am not satisfied that, on a balance of probabilities, the authorities are able and willing to offer protection to the LGBT community. [24] The RPD stated: "While the effectiveness of the protection is a relevant consideration, the preponderance of Federal Court decisions have held that the test for a finding of state protection is whether the protection is adequate, rather than the effective per se."30 [footnote omitted] I am of the view that, while state protection certainly need not be perfect, the level of effectiveness is an important consideration. This is made clear by the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, which provides that when considering the decriminalization of same-sex relations in a country or government programmes to improve the treatment of LGBT individuals, there is need for a decision maker to examine "the degree of actual implementation, the effectiveness, and the durability of these legislative or other improvements in light of how state actors and society continue to treat" LGBT individuals.31 Having regard to the objective documentation and the additional documentation relied on by the Appellant, I am unable to find that the protection to LGBT people in Ukraine is, on a balance of probabilities, sufficiently effective. [25] The RPD concluded that "[a]lthough some LGBT persons suffer from discrimination and ill-treatment from the general public, in general LGBT persons are not subject to action on either the part of the populace or the authorities which would amount to persecution or serious harm."32 It also found that "where the person's fear is of ill treatment/persecution at the hands of non-state agents, then effective state protection is available."33 [26] While the RPD is correct to note that there has been some improvement in the treatment of LGBT individuals in the Ukraine, I do not find, on a balance of probabilities, that the protection provided to LGBT individuals in Ukraine may be characterized as sufficiently effective to be adequate. [27] I find, on a balance of probabilities, that there is a serious possibility that the Appellant will be persecuted in Ukraine based on his sexual orientation. I do not find that the state will provide protection anywhere in the country and, as such, do not find there to be an adequate internal flight alternative in Ukraine. CONCLUSION [28] Pursuant to paragraph 111(1)(b) of the IRPA, I set aside the decision of the RPD and find the Appellant to be a Convention refugee. The appeal is allowed. (signed) "James Sloan" James Sloan December 21, 2018 Date 1 RAD Rule 3(3)(g)(iii) provides that the Appellant's Record must contain "a memorandum that includes full and detailed submissions regarding...how any documentary evidence referred to in paragraph (e) [i.e. any documentary evidence that the appellant wants to rely on in the appeal] meets the requirements of subsection 110(4) of the [IRPA] and how that evidence relates to the appellant". 2 SOGIE Guideline: Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression: issued by the Chairperson, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, effective date: May 1, 2017 ("SOGIE Guideline"). 3 Exhibit P-2, Appellant's Record, at p. 5, Reasons and Decision, at para 12. 4 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: M.C.I. v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.); 1996 CanLII 3981. 5 Exhibit P-2, Appellant's Record, at p. 6, Reasons and Decision, at para 12. 6 In this regard, see Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Ukraine (March 31, 2017), item 4.4, Gütersloh: Bertelsmann Stiftung, I. Political Transformation. Bertelsmann Stiftung, BTI 2016 - Ukraine Country Report, 2016, which outlines significant problems with the independence of the judiciary (at p. 5) and with the prosecution of abuse of office or corruption (ibid.)-though matters have improved since February 2014. See also item 2.3, Freedom House, Ukraine: Freedom in the World 2016, which, inter alia, discusses shortcomings in the functioning of the government (at pp. 7-8). 7 Exhibit P-2, Appellant's Record, at p. 10, Reasons and Decision, at para 21. 8 Exhibit P-2, Appellant's Record, at p. 10, Reasons and Decision, at para 22. 9 "In Ukraine there is ... a very, very big ... big ... homophobic views. After those two ... times was that incidents that they had with police when we tell them that we are gay they look at us like animal[s]. To ask again for help from people ... to help from a people who doesn't accept, recognize gay is a nonsense." (Exhibit P-2, Appellant's Record, Exhibit "A", Transcript of the November 20, 2017 RPD Hearing, at p. 40.) 10 Montemayor Romero, Santiago Cosme v. M.C.I. (F.C., no. IMM-1146-08), Dawson, August 28, 2008; 2008 FC 977. 11 Exhibit P-2, Appellant's Record, at p. 12, Reasons and Decision, at para 24. 12 When asked why he did not have a letter indicating that they had closed the file in relation to the May 2017 attack, he testified "...I think that I can't get something similar because what I think they never open anything." (Exhibit P-2, Appellant's Record, Exhibit "A", Transcript of the November 20, 2017 RPD Hearing, at p. 27.) 13 Ibid., at pp. 27-28. 14 See the Jimenez case, where the Federal Court held: "Simply put, the Board was not required to accept every assertion made by the principal Applicant simply because it found her to be generally credible." (Jimenez, Carolina v. M.C.I. (F.C., no. IMM-1931-18), Diner, December 6, 2018; FC 1225, at para 15. 15 Ibid., at para 25. 16 Kapuuo, Clemencia v. M.C.I. (F.C., no. IMM-1562-18), Diner, November 2, 2018, 2018 FC 1107, at para. 16, relying on Ruszo, Zsolt v. Canada (Citizenship and Immigration) (F.C., no. IMM-5386-12), Crampton, October 1, 2013, 2013 FC 1004, at para 33. 17 NDP for Ukraine, supra footnote 6, item 1.13, United Kingdom (UK) Home Office, Country Information and Guidance Ukraine: Sexual Orientation and Gender Identity. Version 1.0, 17 December 2015, p. 13, at para 6.1.4. 18 Ibid. 19 NDP for Ukraine, supra footnote 6, item 2.1, US Department of State, Ukraine: Country Reports on Human Rights Practices for 2016, March 3, 2017, p. 53. 20 NDP for Ukraine, supra footnote 6, item 1.13, United Kingdom (UK) Home Office, Country Information and Guidance Ukraine: Sexual Orientation and Gender Identity. Version 1.0, 17 December 2015, at p. 20, para 8.2.1. 21 Ibid. 22 Ibid. 23 Ibid., at p. 15, para 6.1.8. 24 Ibid., at p. 1.13, at p. 5, para 2.3.2. 25 NDP for Ukraine, supra footnote 6, item 2.1, US Department of State, Ukraine: Country Reports on Human Rights Practices for 2016, March 3, 2017, pp. 51-52. 26 Ibid., at p. 51. 27 NDP for Ukraine, supra footnote 6, item 1.13, United Kingdom (UK) Home Office, Country Information and Guidance Ukraine: Sexual Orientation and Gender Identity. Version 1.0, December 17, 2015, at pp. 5-6, para 2.3.5. 28 Ibid., at p. 12, para 5.1.4. 29 Ibid., at p. 14, para 6.1.6. 30 Exhibit P-2, Appellant's Record, at p. 5, Reasons and Decision, at para 11. 31 SOGIE Guideline, supra footnote 2, at para 8.6.5. 32 Exhibit P-2, Appellant's Record, at p. 9, Reasons and Decision, at para 19. 33 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-03157 RAD.25.02 (September 18, 2018) Disponible en français 12 RAD.25.02 (September 18, 2018) Disponible en français