TB8-15824

RAD File No. / No de dossier de la SAR : TB8-15824 TB8-15825 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision August 13, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subject of the appeal Robin Morch Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX both citizens of Ukraine, are appealing the decision rendered by the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] For the reasons set out below, the appeal is dismissed. BACKGROUND [3] In his Basis of Claim Form (BOC Form), in which the account is submitted in the names of both appellants, the principal appellant XXXX XXXX alleges that he fears that he and his spouse would be imprisoned in Ukraine for having both refused to report for military service after being summoned to do so. [4] The appellants, both in their forties, came to Canada on XXXX XXXX XXXX2013, as visitors. [5] The appellants allege that they found out from the female appellant's mother that they had each been called up for military service in November 2016. The female appellant's mother allegedly submitted to the recruiting office an application for exemptions for the appellants on religious and political grounds. These applications for exemptions were allegedly denied. [6] The appellants claimed refugee protection in Canada in late 2016. [7] Following a hearing on April 20, 2018, in written reasons dated May 30, 2018, the RPD rejected the claim for refugee protection on the ground that the harm the appellants would face in Ukraine because of their refusal to report for military service does not amount to persecution within the meaning of the Convention or to a risk under section 97 of the Immigration and Refugee Protection Act (IRPA). [8] Before the Refugee Appeal Division (RAD), the appellants argue that the RPD erred in its assessment of the harm they would face in Ukraine, for reasons that will be outlined below in the "Analysis" section. [9] For these reasons, the appellants are asking the RAD to set aside the RPD's determination and grant them refugee protection or, alternatively, to refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [10] The role of the RAD is to review RPD decisions applying the correctness standard of review after conducting its own analysis of the record in order to determine whether the RPD erred, as the appellants allege. NEW EVIDENCE [11] On July 14, 2020, the appellants filed 10 documents with the RAD, which they submit constitute new evidence under subsection 110(4) of the IRPA, which states as follows: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] In addition to the explicit conditions set out in subsection 110(4) of the IRPA, the RAD must also consider the implicit conditions pertaining to the admissibility of new evidence as established by the Federal Court of Appeal in Singh (M.C.I. v. Parminder Singh, 2016 FCA 96), and in particular, in this case, the criteria of the credibility and the relevance of the new evidence. [13] The documents numbered 1 to 9 are articles from various sources, all postdating the rejection of the claim, and pertain to the recent political situation in Ukraine. In particular, these articles deal with the relationship between Ukraine and Russia and the activities of extremist right-wing groups in Ukraine. [14] In the accompanying letter, the appellants submit that the information in the documents is [translation] "central to the decision." [15] I disagree with this submission. On the contrary, I am of the opinion that none of these nine articles address the determinative issue in this case, namely, whether the RPD erred in its analysis and assessment of the harm the appellants would face for refusing to do their military service if they were to return to Ukraine. [16] Consequently, given the lack of relevance of these documents, I do not accept them into evidence before the RAD. [17] Document 10 is an email received from the female appellant's mother, dated July 7, 2020, stating that military officials still come to her home, from time to time, threatening to imprison the appellants if they return to Ukraine. According to the author, this is an [translation] "update" to the email sent on April 8, 2018, by the same person and submitted into evidence before the RPD. [18] I accept this document into evidence before the RAD. HEARING BEFORE THE REFUGEE APPEAL DIVISION [19] Subsection 110(6) of the IRPA states as follows: The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [20] I am of the opinion that the document accepted into evidence does not satisfy the above criteria. This document does not raise a serious issue with respect to the appellants' credibility, as their credibility was not called into question by the RPD. This document is not central to the decision and does not justify allowing the refugee protection claim, as will be seen below in the Analysis section. [21] For these reasons, there is no cause to hold an oral hearing before the RAD. ANALYSIS [22] The issue in this case is whether or not the RPD erred in its analysis and assessment of the harm the appellants would face for refusing to do their military service if they were to return to Ukraine. [23] After analyzing the evidence presented, the RPD's reasons and the appellants' submissions, I am of the opinion that the answer to that question is no, for the reasons that follow. [24] First, the RPD concluded that the facts alleged by the appellants were credible and, in particular, that Ukrainian legislation does not provide for an exemption from military service for individuals like them who cite political reasons, ethnic grounds (in the case of the male appellant) and their membership in the Greek Orthodox Church. The RPD was of the opinion that the appellants would face criminal prosecution because of their refusal to do their military service. This is not being challenged before the RAD. [25] In arriving at the conclusion that the appellants' prosecution and the sentence they might receive does not amount to persecution, the RPD considered the following: * Mandatory military service, in itself, is not persecutory; * Article 336 of the Criminal Code of Ukraine provides for a term of imprisonment of two to five years for refusing to do military service, and this is a law of general application; * In accordance with the Canadian Federal Court of Appeal decision in Zolfagharkhani,1 the onus is on the appellants to show that a law of general application is inherently, or for some other reason, persecutory; * The documentary evidence shows that, in practice, individuals convicted of evading military service were sentenced to administrative fines, community service or suspended sentences. Others who were convicted were immediately released on probation. The Ukrainian courts determine the degree of culpability of the accused based on the circumstances of each case, and those who cooperate with the authorities receive sentences that do not include detention. [26] In their memorandum, the appellants make a certain number of arguments that, in their opinion, show that the RPD's decision is erroneous. However, in my opinion, the appellants have failed to demonstrate that the RPD's decision is indeed incorrect. [27] In analyzing the evidence presented, I arrive at the same conclusion as the RPD, namely, that the punishments the appellants could face if they were to return to their country do not amount to persecution within the meaning of the Convention and that the appellants would not be subjected to a risk under section 97 of the IRPA. [28] First, the appellants argue that the RPD erred in failing to properly consider in its analysis the content of the email from the female appellant's parents dated April 7, 2018 (see page 128 of the RPD record). The email states that military officials and police officers have come to their home and accused the appellants of being traitors, stating that they will be imprisoned when they return to the country. The email also states that the neighbours have a bad attitude toward them. [29] I note that the RPD did consider this document in its analysis, in paragraphs 27, 28 and 29 of its reasons. Moreover, I agree with the RPD's analysis and do not see any point where it might have erred. [30] The RPD agrees that the appellants could be prosecuted if they were to return to Ukraine and states that it is the courts that would sentence them, not the police or military officials. The RPD further concludes that the attitudes of certain neighbours toward the female appellant's family members also does not amount to persecution within the meaning of the Convention. [31] Consequently, I am of the opinion that the new document accepted into evidence before the RAD does not render this conclusion erroneous, as it repeats the information contained in the first email from April 7, 2018. [32] Second, the appellants argue that the RPD erred in its analysis in considering penalties that are generally handed down for refusal to perform military service,2 in that the sources of the information compiled in this document are not credible because they come in part from the Ukrainian government. This document is entitled "Country Policy and Information Note - Ukraine: Military Service." [33] I disagree with this argument. [34] It is not sufficient to argue that the sources of information are not credible; this must be demonstrated. The appellants have failed to do so in this case. [35] The document the RPD relied on in its analysis (Tab 1.17 of the National Documentation Package (NDP) of July 2017) comes from the United Kingdom Home Office, which in itself is a well-known and credible source, and the information it contains was obtained from a wide variety of sources [translation] "carefully selected" in accordance with the European Union's research directives on conditions in countries of origin. The RAD also consulted the updated version of this document in the most recent NDP (June 30, 2020, Tab 8.6), which contains essentially the same information, namely in Chapter 7.6 entitled: "Penalties for draft evasion and desertion." [36] It is clear from a plain reading of this document that many sources were consulted and cited (see, in particular, the document's Bibliography section), and arguing, as the appellants have done, that this document is not reliable because some of these sources are from the Ukrainian government is insufficient to demonstrate an absence of reliability. [37] In addition, I note that the appellants did not submit any documentary evidence to either the RPD or the RAD that would contradict the evidence the panel consulted and that could invalidate its analysis. [38] Consequently, considering all of the above, I conclude that the appellants have failed to demonstrate that the RPD committed errors that would justify the RAD's intervention. REMEDY [39] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [40] The appeal is dismissed. Normand Leduc Normand Leduc August 13, 2020 Date IRB translation Original language: French 1 Zolfagharkhani v. Canada (Minister of Employment and Immigration), (1993) 3 FC 540 (C.A.). 2 National Documentation Package (NDP) on Ukraine (July 31, 2017), Tab 1.17 (but also at Tab 8.6 of the most recent NDP dated July 20, 2020): Country Policy and Information Note. Ukraine: Military service. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : TB8-15824 TB8-15825 RAD.25.02 (January 2020) Disponible en français 7 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 (January 2020) Disponible en français