Category: Uganda

2022 RLLR 20

Citation: 2022 RLLR 20
Tribunal: Refugee Protection Division
Date of Decision: December 22, 2022
Panel: Kay Scorer
Counsel for the Claimant(s): Solomon Orjiwuru
Country: Uganda
RPD Number: VC2-00608
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division (RPD) in the claim for refugee protection of XXXX XXXX (the Claimant), a citizen of Uganda, who claims refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).[i]

[2] On June 29, 2022, the Minister submitted a Rule 21 Cross Disclosure Application (Rule 21 Application) to the RPD.[ii] As set out in the Rule 21 Application, the Minister requested that the RPD cross disclose the Basis of Claim form and TRV application for the claimant (the BOC)[iii] with the Basis of Claim forms and TRV applications for approximately 16 other claimants (file numbers listed in the Rule 21 application) due to similar details contained in each claimant’s application for Temporary Resident Visas to visit Canada, the date of and route of entry into Canada, the Canadian contact address, the reasons for/details of their claim for protection, and the similar formatting of their BOC allegations. The RPD granted the Rule 21 Application. In the said Rule 21 Application, the Minister notified the parties that it wishes to intervene by making observations and submitting evidence in all claims.

ALLEGATIONS

[3] The claimant’s full allegations are contained in his Basis of Claim form, additional narrative, and were supplemented by his testimony at the hearing.[iv] Summarized only briefly, the claimant fears persecution in Uganda on the basis of his political opinion. The claimant has been an active supporter of the National Unity Party (the NUP) and has held roles within the party. As a result of the claimant’s political involvement, he has been targeted by the state and its agents, assaulted, harassed and threatened. The claimant fears similar or worse treatment in Uganda on the basis of his political opinion should he return.

DETERMINATION

[4] After considering the claimant’s testimony and the documentary evidence, I find the claimant is a Convention refugee pursuant to s. 96 of the Act. My reasons are as follows.

ANALYSIS

Nexus

[5] The claimant’s allegations establish a nexus to the Convention on the ground of political opinion. I have therefore analyzed the claim pursuant to section 96 of the IRPA.

Identity

[6] The claimant’s identity is established, on a balance of probabilities, by the documentary evidence before me, including a copy of his Ugandan passport in Exhibit 1.

Credibility

[7] Pursuant to the Maldonado principle, the claimant benefits from a presumption of truthfulness. I find, on a balance of probabilities, the claimant is credible.

[8] The claimant’s testimony was direct, spontaneous, and consistent. The claimant was able to respond to questions in a forthcoming manner. I asked numerous questions about the claimant’s past involvement in politics in Uganda. The claimant was able to provide ample description about all of his roles within the NUP and his aspirations for running as a candidate for the party. The claimant provided very detailed and spontaneous testimony about his past political passions, including running for perfecter positions in elementary, primary and high school, his official roles as a speaker and later president of a student group at Kampala International University, and his previous support for the FDC and why he ultimately transitioned his support from FDC to the NUP. To these and many other questions, the claimant gave responses which were materially consistent with his narrative, and responses which provided further detail about the claimant’s allegations. I find the claimant was a credible witness, on a balance of probabilities, relating to his allegations of political involvement and risk in Uganda.

[9] In addition, the Claimant submitted documentary evidence to corroborate his claim, all of which can be found in Exhibits 6, 7 and 9, including medical records from injuries sustained in attacks by state agents, a copy of his NUP membership card, NUP documents corroborating the claimant’s official roles within the organization and the risk he has faced on the basis of his involvement with the NUP, a letter from the claimant’s spouse corroborating that the authorities continue to be motivated in harming the claimant. I do not doubt the authenticity of these documents, and I assign them significant weight as they corroborate the claimant’s central allegations.

[10] The Minister raised various credibility concerns including (i) the similarities between the claimant and the other claimants relating to the basis of their TRV applications to Canada and their contact information in Canada (with no claimant referencing this connection) and (ii) the striking similarity in the Basis of Claim form between the claimant and the other Rule 21 Application claimants. Specifically, the Minister submits that because none of the claimants made reference to one another in their applications, their arrival to Canada was likely facilitated by the same agent who helped them fabricate their information, including their similarly drafted Basis of Claim forms and narratives made in their applications for protection. These concerns will be addressed below.

TRV Application Issues – Rule 21 Application

[11] Based on the Rule 21 Application which was granted by the RPD, the TRV applications between all 16 claimants were cross disclosed. The TRV applications were based on the same conference attendance and contained similar supporting documentation to facilitate the obtaining of a visa to Canada.

[12] I asked the claimant to explain how he obtained his visa to Canada. In testimony, the claimant explained that he relied on the assistance of an agent, organized by the NUP party, for obtaining the visa. The claimant provided only his passport to the agent. When I asked the claimant how the agent would have gotten access to some of the other supporting evidence (i.e. educational documents, certificates, employment letters, etc) the claimant advised that all of these documents had already been provided to the NUP and it is possible the agent obtained them from the NUP directly. The claimant advised that he never saw the application for a visa before it was submitted, did not sign the forms included in the application, and was entirely unaware of the contents of the application, including the fact that it was for a TRV to attend a conference. The claimant also explained in testimony that he was unaware of the contents of the visa application until the RPD cross-disclosed the TRV applications pursuant to the Rule 21 application.

[13] I accept that the claimant relied entirely on an agent facilitated by the NUP to obtain the visa, and that he was not privy to the contents of the visa application as a result. I find this to be a reasonable explanation.

[14] I agree with the Minister that these cases demonstrate, on a balance of probabilities, that these claimants used the same agent for facilitating their travel to Canada. I do not find, however, that this undermines the claimant’s allegations that he relied on an NUP agent to obtain a visa to Canada. I find it is a reasonable to believe that there are agents in Uganda who facilitate the travel of multiple claimants at the same time, using the same basis for travel, without the knowledge of those accessing the agent’s services. The actions of the agent would be outside of the control or knowledge of the claimant. I also find it reasonable to believe that the NUP as a party may use the same agent, throughout Uganda, to facilitate the flight of numerous people at the same time from Uganda. I find the claimant’s explanation to be reasonable.

[15] I also asked the claimant about the other claimants living at the same address. The claimant stated that he did not know any of the other claimants living at his address until after he had arrived in Canada. He stated that the agent advised him to talk to no one, including those at his home, and to tell no one about his reasons for being in Canada. As a result, the claimant did not discuss with the other claimant the reasons for being in Canada, and that it was not until the RPD disclosed the Basis of Claim forms that the claimant became aware of the reason for the other claimant’s travel to Canada. Again, I find this explanation to be reasonable. The claimant did not mention these other claimants when he filed his own claim for protection because, when he filed his claim, he was not aware of the reason why the other claimants were in Canada, and unaware of the connections related to the use of the same agent in Uganda. I find the claimant’s explanation to be reasonable.

Similarity in the Basis of Claim forms – Rule 21 Application

[16] Based on the Rule 21 Application, it is notable that the Basis of Claim forms are written in a remarkably similar manner, including the use of capital letters and short sentences in the Basis of Claim form itself, and in the format of the majority of the written additional narratives.

[17] The Panel acknowledges that similarities in narratives may service to undermine a claimant’s credibility. As stated by the court in Ravichandran,[v] “courts have found that it is not unreasonable to draw a negative inference as to credibility from unwarranted similarities between a refugee claimant’s narrative and the narratives of other unrelated claimants (Liu v Canada (Minister of Citizenship and Immigration), 2006 FC 695 at para 39; Shi v Canada (Minister of Citizenship and Immigration), 2003 FC 1088 at paras 1, 19).”[vi]

[18] Nonetheless, the court went further to state that “… while decision-makers may rely on their common sense in drawing negative credibility inferences from unwarranted and striking similarities between the testimony of applicants, it is equally true that they must use their common sense to determine whether, in the circumstances of the case, there is a valid reason for the similarity. If there is, it would not be appropriate to find that the similarity casts doubt on the applicant’s credibility (Zhang v Canada (Minister of Citizenship and Immigration), 2006 FC 550 at paras 25-28, [Zhang]).”[vii]

[19] I put to the claimant that there are remarkably similar formats in the Basis of Claims for each of the noted claimants that lead the Panel to believe that the forms were, in some way, completed using the same person/person(s) for assistance, or the same template. The claimant stated he did not have anyone help in completing his Basis of Claim form, and that he is not sure why the other Basis of Claim forms are stylistically like his own. The claimant was adamant that he completed the document himself, with the help of searching for advice online on how to initiate a claim in Canada. The claimant also stated that he completed the form using a shared computer at the residence, and that the documents were saved to the desktop of that computer and would have been available to the other residents. In this way, the claimant submits it is possible that other claimants reviewed his form and completed their documents in a similar fashion.

[20] The Minister submits that the similar formatting may indicate that the claimant’s claim is fabricated. I find there is insufficient evidence before me to demonstrate this to be the case on a balance of probabilities. Instead, while I do not accept the claimant’s testimony that no one assisted him in completing his forms, I do not find this credibility concern undermines the otherwise detailed and credible testimony presented by the claimant in support of his allegations of political persecution and risk. Although the claimant was not forthcoming in explaining who assisted him in completing his form, I find that receiving assistance or following a stylistic template does not necessarily indicate that a claim is fabricated. Given the claimant was able to credibly testify to the contents of his allegations, I find, on a balance of probabilities, that the assistance in completing his Basis of Claim and narrative was limited to the stylistic approach and not a fabrication of its contents.

[21] Informing this finding is the observation that the similarities between the claimant’s Basis of Claim and the other claimants’ documents relates to the stylistic completion of the form and narrative. The style of the answers to the questions in the Basis of Claim form itself are all similar, in capital letters and with the same countries listed in question 6. In contrast, in my review of the Basis of Claim forms disclosed pursuant to the Rule 21 Application, the actual content of the Basis of Claim forms – in particular, the chronology of the risk alleged by the claimant in the case before me – is unique to the claimant and not reiterated by any other claimant. While other claimants express risk for their political opinion and association with the NUP, the claimant was able to credibly testify to his specific experiences in Uganda. Given the country documents do indicate that NUP supporters face persecution in Uganda, I do not find it surprising that a dozen or so supporters have made their way to Canada to seek protection at a similar time, in light of the evidence that such supporters would require protection.

[22] For that reason, while I agree with the Minister that there are striking similarities in the format of narrative of the claimant as compared with the other claimants, I find the contents are unique and supported by the claimant’s credible testimony.

Summary of Credibility Determination

[23] My role is to assess the evidence before me to determine what has been established, on a balance of probabilities. Although I accept the claimant was not truthful about assistance received in the preparation of his BOC, I do not find this to be determinative of the credibility of his allegations of risk. I find there is enough credible evidence before me to establish, on a balance of probabilities, that the claimant has been subjected threats, assaults and harassment in Uganda on the basis of his political opinion.

[24] I find the claimant has established his subjective fears on a balance of probabilities.

Objective Basis

[25] The claimant’s allegations of fear of persecution on his political opinion are supported by the objective documentary evidence. The panel finds the claimant’s claim that he fears imprisonment, torture and death if he is returned to Uganda, at the hands of the NRM ruling party on the grounds of his political opinion and membership in the NUP opposition party, to be objectively well-founded.

[26] Pertaining specifically to political opponents, there is evidence in the National Documentation Package (NDP), for example at item 2.1, that the government committed significant human rights issues including arbitrary killings; forced disappearance; torture; harsh and life-threatening prison conditions; arbitrary arrest or detention; political prisoners or detainees; serious restrictions on free expression and free restrictions on political participations. Opposition activists, local media, and human rights activists reported that security forces killed individuals the government identified as dissidents and those who participated in protests against the government.[viii]

[27] The government continued to target political dissidents subjecting them to intimidation, harassment, arbitrary arrest and detention. There were reports, for example at item 2.2, of restrictions on the rights to freedom of expression, association, and peaceful assembly of political opposition members, journalists, human rights defenders, and students.[ix]

[28] According to item 2.3, violations of freedom of association, assembly, and expression continued in 2019 as authorities introduced new regulations restricting online activities and stifling independent media. The government arrested political opponents and blocks political and student rallies.[x]

[29] Based on the documents evidence cited above, I find that the claimant will face a serious possibility of in Uganda on the basis of his political opinion and involvement. I find that the claimant’s fears are objectively well-founded.

State Protection and Internal Flight Alternative

[30] States are presumed capable of protecting their citizens. In this case, given the state is an agent of persecution I find the presumption has been rebutted. I find there is no state protection available to the claimant in Uganda.

[31] Further, since the state is an agent of persecution and is in control of the entirety of its territory, I find the claimant faces a serious possibility of persecution throughout Uganda. I find there is no viable internal flight alternative available to the claimant in that country.

CONCLUSION

[32] Based on the above analysis, I find the claimant is a Convention refugee pursuant to s. 96 of the Act. His claim is accepted.

(signed) Kay Scorer

December 22, 2022

[i] Immigration and Refugee Protection Act, S.C. 2001, c.27.

[ii] Exhibit 4 – Rule 21 Cross Disclosure Application, Minister of Immigration, Refugees and Citizenship Canada.

[iii] Exhibit 2 Basis of Claim Form

[iv] Exhibit 2 and Exhibit 6.

[v] Ravichandra v. Canada (Citizenship and Immigration), 2015 FC 665

[vi] Ibid at para. 18

[vii] Ibid at para. 19

[viii] Exhibit 3. National Documentation Package for Uganda, 31 August 2022, at tab 2.1. Uganda. Country Reports on Human Rights Practices for 2021. US Department of State April 12, 2022.

[ix] Exhibit 3. National Documentation Package for Uganda, 31 August 2022, at tab 2.2. Uganda. Amnesty International Report 2021/22: The State of the World’s Human Rights. Amnesty International 29 March 2022.

[x] Exhibit 3. National Documentation Package for Uganda, 31 August 2022, at tab 2.3. Uganda. World Report 2022:Events of 2021. Human Rights Watch, January 2022.

All Countries Uganda

2021 RLLR 65

Citation: 2021 RLLR 65
Tribunal: Refugee Protection Division
Date of Decision: July 30, 2021
Panel: Miranda Robinson
Counsel for the Claimant(s): Bola Adetunji
Country: Uganda
RPD Number: TC0-04879
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: Okay, so we are back on the record. As I stated previously, I am just going to read through the decision in full and I do ask that if you have anything you wish to say, or if you have any questions or concerns, please wait until I have completed reading the decision. Okay?

[2] CLAIMANT: Okay.

[3] MEMBER: Okay. So I will read the decision now.

[4] CLAIMANT: All right.

INTRODUCTION

[5] I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. These are the reasons for the decision in the claim of XXXX XXXX who claims to be a citizen of Uganda and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[6] In rendering my reasons, I have considered the Chairperson’s Guideline No. 9: Proceedings Before the IRB involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[7] Your allegations are found in your Basis of Claim forms and narrative in Exhibit 2, as well as in oral testimony heard today.

[8] In summary, you allege persecution from Ugandan authorities and the homophobic community in Uganda for your sexual orientation as a gay man. You allege that you have been charged with crimes relating to a workshop that you attended that was organized by an LGBT group in Uganda.

DECISION

[9] I find that you are a refugee, pursuant to Section 96 of the Immigration and Refugee Protection Act, as there exists a serious possibility of persecution should you return to Uganda on account of your membership in a particular social group, which is as a gay man.

Identity

[10] I find that your identity as a national of Uganda is established by the documents provided, primarily the certified copy of the passport, as well as your Ugandan identity card and driver’s licence, which are given in Exhibits 1 and 4.

Credibility

[11] I find you to be a credible witness and therefore believe what you have alleged in support of your claim.

[12] You testified in a straightforward and direct manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. You testified credibly regarding your same-sex relationships that you had been in, including providing details of the relationship genesis and how they grew, as well as how you kept these mostly hidden from the public.

[13] You explained and provided details with your interactions with LGBT organizations in Uganda, including the GALA Initiative and Sexual Minorities Uganda, also referred to as SMUG.

[14] In regard to the event precipitating your departure from Uganda, you testified that you were participating in an LGBTQ workshop hosted by GALA when you were attacked by several men after you departed. When you tried to go to the police to inform them of the incident and for protection, they counter-accused you of unlawful assembly and continued to harass, target, and threaten you after this incident, as well as you allege that you were harassed, targeted, and threatened by others in the homophobic community after this knowledge of your participation in this event came out. After speaking with a SMUG safety protection officer, you were advised to leave the country for your own safety, at which time you prepared your visa application for Canada.

[15] I note that you were forthright about being in two relationships with women in Uganda, and that you have two children born of these. You stated that you were pressured by family to enter into these relationships, and that you maintained your long-term same-sex relationship with XXXX while you were engaged to XXXX. You explained that you were never interested in the relationships with women, and that it was only to appease your family that you entered into them.

[16] I accept this explanation. It is reasonable. And I therefore do not hold any negative credibility inference regarding your sexual orientation because of these relationships.

[17] Overall, apart from that, your testimony was internally consistent and was in line with the objective evidence. I do note you have provided documentary evidence to corroboration the allegations of this claim, and after reviewing the documents you have provided, I have no reasons to doubt their authenticity.

[18] In particular you have provided an affidavit from your ex-partner, XXXX, along with photographs of the two of you together. You testified there were many years between the two photographs and it appears to be so based on the general aging of the both of you. You have also given letters of support from GALA Initiative and SMUG – Sexual Minorities Uganda, indicating your participation in their events and activities, as well as their knowledge of your sexual orientation and the targeting that you faced.

[19] You have given the release on bond from the police after your arrest to corroborate your arrest. As well as a letter of support from friends in Canada attesting to their knowledge of your sexual orientation and your participation with LGBTQ organizations, as well as a letter of support from your current same-sex partner.

[20] I therefore find on a balance of probabilities that you are a gay man that has been in same-sex relationships in Uganda and in Canada, that you have been targeted for your work with LGBTQ organizations in Uganda, and that your subjective fear is established.

Objective Basis

[21] Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence set out below, I find that you have established a prospective risk and a well-founded fear of persecution in Uganda.

[22] This risk is corroborated by the National Documentation Package for Uganda in the April 16^th version in Exhibit 3. Item 2.1 of the NDP states that consensual same-sex sexual conduct is criminalized, according to a colonial era law that criminalizes “carnal knowledge of any person against the order of nature”. This provides for a penalty of up to life imprisonment. Attempts to “commit unnatural offences” as laid out in law are punishable with seven years of imprisonment, and the government of Uganda does enforce these laws. Although the law does not restrict freedom of expression or peaceful assembly for those speaking out in support of the human rights of LGBTI persons, the government does severely restrict such right. Further, the law does not prohibit discrimination against LGBTI persons in areas such as housing, employment, nationality laws, or access to government services.

[23] Item 6.1 states that authorities typically consider merely being a homosexual as a breach of the sodomy laws, and simply violating social norms can create a presumption of sodomy. Historically, some officials have had a much broader understanding of the “unnatural acts” than the courts have actually defined, and this has been used to justify harassment, arrests, and incarceration of sexual minorities, regardless of whether they have engaged in illegal sexual acts or not. And, further to this, Ugandan authorities typically identify homosexuality itself as a breach of the law, regardless of an individual’s sexual practices.

[24] 6.2 notes that the homophobic views are widespread in Ugandan society and are openly promoted in government and in religious areas.

[25] I therefore find the objective basis for this claim has been established.

Nature of the Harm

[26] I have considered your claim under Section 96 of IRPA as I conclude the risk you describe constitutes persecution based on at least one of the grounds in Section 96, specifically membership in a particular social group as a gay man. I find you are at risk of harassment, discrimination, arrest, physical harm, and imprisonment for your sexuality, as well as an inability to live freely as a sexual minority.

State Protection

[27] I find that it would be objectively unreasonably for you to seek the protection of the state in light of your circumstances, as the agent of persecution is the state. Homosexuality, as noted above, is criminalized throughout Uganda. Additionally, the country evidence indicates that authorities do not provide adequate protection or access to justice to victims of crimes who are LGBTQ and police themselves are often seen as principal violators of rights against this community.

Internal Flight Alternative

[28] I have examined whether a viable Internal Flight Alternative exists for you. Based on the evidence on file, I find that you face a serious possibility of persecution throughout the entirety of Uganda. Again, the laws condemning same-sex acts and relationships are consistent throughout the country and there is no part of Uganda where you would not face persecution or where you would be able to live freely. I therefore find there is no Internal Flight Alternative available to you.

CONCLUSION

[29] In light of the preceding, I conclude that you are a refugee pursuant to Section 96 of the Immigration and Refugee Protection Act and accordingly I accept your claim.

[30] COUNSEL: Thank you very much, Madam.

[31] CLAIMANT: Thank you very much, Madam Member.

[32] MEMBER: You are very welcome. Thank you, Madam Interpreter for being available and being patient here today. It is appreciated. Thank you, Counsel. And Mr. XXXX, I wish the best for your future.

[33] CLAIMANT: Thank you very much, Madam Member.

[34] MEMBER: And have a great day, everyone.

[35] INTERPRETER: Thank you.

[36] CLAIMANT: I thank you.

[37] MEMBER: Bye.

———- REASONS CONCLUDED ———-

All Countries Uganda

2021 RLLR 61

Citation: 2021 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2021
Panel: Miranda Robinson
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Uganda
RPD Number: TC0-01000
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

MEMBER:

Introduction

[1] I have considered your testimony and the other evidence in this case, and I am ready to render my decision orally. These are the reasons for the decision in the claim of XXXX XXXX, who claims to be citizen of Uganda and is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons, I have considered and applied the Chairperson’s guidelines number 9, proceedings before the IRB involving sexual orientation and gender identity and expression.

Allegations

[2] Your allegations are found in your Basis of Claims forms and narrative in Exhibit 2, as well as in the amendments in Exhibits 7, 9, and 10, and in oral testimony heard today. In summary, you allege persecution in Uganda at the hands of the government and its authorities as well as the anti-LGBTQ society for your sexual orientation as a gay man.

Decision

[3] I find that you are a refugee pursuant to s. 96 of the Immigration and Refugee Protection Act, as there exists a serious possibility of persecution should you return to Uganda on account of your membership in a particular social group, that is, as a person that identifies as a gay man.

Identity

[4] I find that your identity as a national of Uganda is established by the documents provided, relying primarily on the certified copies of your passports in Exhibits 1 and 4.

Credibility

[5] I did find you to be a credible witness and therefore believe what you have alleged in support of your claim. You testified in a straightforward manner. You spoke naturally and spontaneously, and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. In particular, you testified credibly regarding how you came to understand your own sexuality and attraction to the same sex, specifically to your long-term same-sex partner, XXXX (ph), in Uganda. You explained that knowing from a young age that same-sex relationships were generally not accepted at school and in your community, and so you tried to keep your relationship secret or hidden, but it was exposed at school, and after which you were both expelled. Years later, you continued your relationship, and it also became exposed again as an adult in late July 2020 — sorry, in late July 2019. After this exposure, you allege that you were dismissed from work and you had been physically attacked by a group of strangers who used homophobic slurs. After relocating on two occasions, you also obtained a visa and departed to Canada.

[6] I note you have also provided evidence to establish the allegations as set out above, and after reviewing the documents, I have no reasons to doubt their authenticity, and I do give weight to the following documents. To establish your sexual orientation and the other allegations, you have provided a statutory declaration and a letter of support from your same-sex partner in Uganda. These attest to the exposure of the relationship and the targeting and violence. You provided a letter from Icebreakers Uganda, which is an LGBTQ organization that you sought support from after your same-sex relationship was exposed. You’ve also provided letters, such as from the African Centre for Refugees, stating your participation in their events and programs, including the LGBTIQ Black Lives Matter protest in July of 2020, and that you have shared your experiences as a sexual minority in their awareness program. I also note they have included a brochure which includes multiple photos of you participating in the LGBTIQ Black Lives Matter protests, and additional photos that you have also provided and testified credibly about. You’ve given a letter from the friend that you stayed with after your attack in October of 2019, as well as letters of support and XXXX XXXX from the Canadian Centre for Victims of Torture, which detail your descriptions of your sexual orientation and your experiences as a result. Based on the totality of the evidence and the credible testimony, I find on a balance of probabilities that you are person that identifies as gay, that you have been in a same-sex relationship in Uganda which was exposed publicly before you came to Canada. I find your subjective fear is established.

Objective Basis

[7] Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence set out below, I find you have established a prospective risk and a well-founded fear of persecution in Uganda. The risk is corroborated by Exhibit 3, the National Documentation Package for Uganda, as well as country conditions in Exhibit 6.

[8] Item 2.1 of the NDP states that consensual same-sex sexual conduct is criminalized, according to colonial-era laws that criminalize “Carnal knowledge of any person against the order of nature,” and that these provide for a penalty of up to life imprisonment. Attempts to commit unnatural offences as laid out in the law are punishable with seven years of imprisonment, and the government has occasionally enforced the law in recent years. As well, although the law does not restrict freedom of expression or peaceful assembly, for those involved with LGBTI groups or speaking out in support of their rights, the government has severely restricted these rights, and the law does not prohibit discrimination against LGBTI persons in areas such as housing, employment, or access to government services. Item 6.1 states that authorities typically consider merely being a homosexual or being in a same-sex relationship as a breach of sodomy laws, and simply violating social norms can also create this presumption of these acts. As well, it indicates that some officials have had a much broader understanding of unnatural acts than has been defined in courts, and this has been used to justify harassment, arrest, and incarceration of sexual minorities, regardless of whether they have engaged in any illegal sexual act or not. 6.2 also details that homophobic views are widespread in society and are openly promoted in government and religion. I therefore find on a balance of probabilities the objective basis for this claim has also been established.

Nature of the Harm

[9] I have examined your claim under s. 96 of IRPA as I conclude the risk you describe constitutes persecution based on at least one of the grounds in s. 96, specifically your membership in a particular social group as a man who identifies as a gay person. I find you are at risk of harassment, discrimination, arrest, and imprisonment for your sexuality, as well as an inability to live freely as a sexual minority.

State Protection

[10] I find it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances as the agent of persecution is the state. As mentioned in the objective evidence, same-sex activity is criminalized throughout Uganda, and it is indicated throughout the evidence that authorities do not provide adequate protection or access to justice for victims of crimes who are LGBTQ. Additionally, police themselves are often seen as the principal violator of rights against this community, and therefore, the presumption of state protection is rebutted.

Internal Flight Alternative

[11] I have also examined whether a viable internal flight alternative for you. Based on the evidence on file, I find that you face a serious possibility of persecution throughout Uganda. Again, the laws condemning same-sex acts and relationships are consistent throughout the country, and there is no part where you would not face persecution or that you would be able to live freely. I therefore find there is no internal flight alternative available to you.

CONCLUSION

[12] In light of the preceding, I conclude that you are a refugee pursuant to s. 96 of the Immigration and Refugee Protection Act, and accordingly, I accept your claim today.

——————–REASONS CONCLUDED ——————–

All Countries Uganda

2021 RLLR 46

Citation: 2021 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2021
Panel: Louis Gentile
Counsel for the Claimant(s): El-Farouk Khaki
Country: Uganda
RPD Number: TB9-30981
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000136-000139

DECISION

[1] MEMBER: This is the decision for the following claimant, XXXX XXXX XXXX, file number TB9- 30981. In reaching this decision, I have followed Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, and Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution.

[2] I’ve considered your testimony and the other evidence in the case, and I’m ready to render my decision orally.

[3] I would like to add that when written decisions are issued, they may be edited for spelling, syntax and grammar. Additional country documentation may also be added.

[4] You are claiming to be a citizen of Uganda and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

DETERMINATION

[5] I find that you are a Convention refugee because you face a serious possibility of persecution for the following reasons.

ALLEGATIONS

[6] You allege the following.

[7] You are a citizen of Uganda. You were raised as a Christian and became a XXXX XXXX XXXX. You supported LGBT XXXX at two XXXX where you worked in Uganda. As a consequence, you were accused of being a lesbian and you were abducted, severely assaulted and gang raped by three men on the orders of the father of two of your XXXX, who was a Major in the Ugandan army.

[8] You left your spouse and children behind and hid until you fled to Canada. You allege that as a suspected lesbian and as a supporter of LGBT rights, if you return to Uganda you will face persecution from the state, including members of the armed forces, and from members of the community.

[9] You allege that there is no state protection for you, nor any internal flight alternative.

IDENTITY

[10] Your personal identity as a citizen of Uganda has been established by your testimony and the supporting documents filed in the exhibits. These include a certified copy of a Ugandan passport with Canadian TRV and a copy of your Ugandan birth certificate.

[11] I therefore find, on a balance of probabilities, that identity and country of nationality have been established.

NEXUS TO SECTIONS 96 OR 97

[12] I find that there is a link between what you fear and one of the five Convention grounds, specifically, your membership of a particular social group as an imputed sexual minority and as a defender of LGBT rights. Therefore, this claim has been assessed under section 96.

CREDIBILITY

[13] In terms of your general credibility, I have found you to be a credible witness and I therefore accept on a balance of probabilities what you have alleged in your oral testimony and in your Basis of Claim form. In support of your claim, you provided documents confirming that you were a XXXX at the XXXX you described, that there was a controversy surrounding allegations of homosexuality at one of the XXXX that reached the media, and that you were the victim of a sexual assault in 2018.

[14] You also provided statutory declarations and letters of support from numerous friends and former colleagues familiar with your circumstances and the accusations against you because of your imputed sexual orientation as a lesbian and your support for LGBT students. These include a letter from MJ, an administrator at XXXX XXXX XXXX, who witnessed your arrest by Major B., statutory declarations from the dental surgeon, Dr. A.S., who treated some of your injuries in 2018, and from Dr. M.H.K., who treated your internal and bodily injuries.

[15] Your testimony was straightforward, unrehearsed, responsive to questioning and was in keeping with your Basis of Claim form and there were no significant inconsistencies or omissions.

[16] Your description of your experiences defending the rights of LGBT XXXXat two XXXX in Uganda was detailed, convincing and unrehearsed, as was your testimony about the brutal assault perpetrated against you by Major B and his men. You also described in detail the pain of having to leave your husband and children behind in Uganda to seek safety in Canada.

[17] I therefore believe what you have alleged in support of your claim and I find the following to be credible.

[18] That on a balance of probabilities, you are a XXXX from Uganda who defended the rights of LGBT XXXX and that many people believe that you are a lesbian, although you are not. You were brutally assaulted by members of the military as a consequence of your imputed sexual orientation and your defence of LGBT students.

[19] You have credibly established your subjective fear of persecution, including violence, from members of the community and imprisonment from the state.

PERSECUTION RISK

[20] The objective documentation supports your allegations that individuals in your circumstance face persecution. Ugandan law criminalizes sexual acts between mutually consenting people of the same sex, NDP item 6.1 at page 22. Senior government Ministers have engaged in openly-hostile rhetoric against the practice of and legalization of same-sex behaviour, NDP item 6.2, page 1.

[21] Ugandan police are often seen as the principal violators of the rights of LGBT citizens, item 6.2 at page 21. Homophobic views are widespread in society. LGBT persons are not only not accepted, they’re often believed to be or accused of being an intrusion of western values into Ugandan society, NDP item 6.4 at paragraph 2.4.14.

[22] Your counsel also provided additional evidence in Exhibit 5 confirming that the persecution of LGBT citizens in Uganda has continued and, in some cases, intensified during the COVID pandemic. Therefore, I find that you have a well-founded fear of persecution.

STATE PROTECTION

[23] I find that adequate state protection would not be available to you were you to seek it in Uganda. The objective documentary evidence indicates that homosexuality is criminalized throughout Uganda and authorities often do not provide adequate protection or access to justice to victims of crime with diverse (inaudible) or imputed minority sexual orientation and the police themselves are often seen as the principal violators of the rights of LGBT citizens.

[24] Furthermore, in your case, an agent of the state from the armed forces has been the principal agent of persecution. In light of the above objective country documentation and the evidence presented, I find that the claimant has rebutted the presumption of state protection clearly and convincingly.

[25] Based on your personal circumstances as well as the objective country documentation, I find that adequate state protection would not be available to you in Uganda.

[26] On internal flight alternative, I have also considered whether a viable internal flight alternative exists for you. The country documentation indicates that the situation for individuals in circumstances such as yours is the same throughout the country and that you would face a serious possibility of persecution or risk to life anywhere in Uganda.

[27] Furthermore, I observe that members of the armed forces have subjected you to persecution and, as such, I find there is no viable internal flight alternative for you in Uganda.

[28] In conclusion, based on the totality of the evidence, I find the claimant to be a Convention refugee, as she faces a serious possibility of persecution because of her imputed sexual orientation as a lesbian and her active support for LGBT rights. Your claim is therefore accepted.

———- REASONS CONCLUDED ———-

All Countries Uganda

2021 RLLR 2

Citation: 2021 RLLR 2
Tribunal: Refugee Protection Division
Date of Decision: May 12, 2021
Panel: Suraj Balakrishnan
Counsel for the Claimant(s): Johnson Babalola
Country: Uganda
RPD Number: TB9-27084
Associated RPD Number(s): N/A
ATIP Pages: 000045-000052

REASONS FOR DECISION

[1] The claimant, XXXX XXXX alleges that he is a citizen of Uganda, and is claiming refugee protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

DETERMINATION

[2] Having considered all of the evidence, the panel finds, on a balance of probabilities, that the claimant has established that he would face a serious possibility of persecution in Uganda because of his religion.

ALLEGATIONS

[3] The specifics of the claim are set out in the narrative of the claimant’s Basis of Claim Form, as amended.¹ The following is a summary of the claimant’ s allegations.

[4] The claimant alleges to be a citizen of Uganda. He fears being persecuted by the Tabliq, a fundamentalist faction of Ugandan Muslims, because of his Christian proselytization efforts.

IDENTITY

[5] The claimant’s personal identity and nationality have been established, on a balance of probabilities, through his testimony, as well as documentation filed; namely, a certified true copy of his Ugandan passport.²

NEXUS

[6] The panel finds that there is a nexus between the harms that the claimant fears and his religious views and practices. The claim will therefore be assessed pursuant to section 96 of IRPA. The test under section 96 is whether there is a serious possibility of persecution should the claimant return to Uganda and the panel has found that the claimant has met that test.

CREDIBILITY

Identity as a Christian

[7] When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. The claimant testified in a detailed manner consistent with his BOC about growing up as a Christian and becoming more interested in Christianity during his university days in the United Kingdom. The claimant testified that he became more interested in Christianity in the UK because he would encounter Muslims proselytizing, and he wanted to learn more about Christianity so that he would be able to defend his faith in these discussions.

[8] The claimant was asked basic questions about Christianity, including the most recent church service he attended, the contents of the sermon, his favorite story from the Bible, and Easter. The claimant’s responses were very detailed. The claimant also provided a copy of his Certificate of Baptism from XXXX XXXX XXXX³, as well as a supporting letter form XXXX XXXX XXXX XXXX in Canada.⁴The panel finds, on a balance of probabilities, that the claimant is a genuine practicing Christian.

Proselytism and Incidents

[9] When the claimant returned to Kampala, Uganda, he went to a park on three occasions with a friend during May of 2019 where Muslims were proselytizing. On the first visit to the park, the claimant shared his views of Christianity with two of the Muslim proselytizers who were old friends of the claimant’s friend. The claimant did not sense any hostility from the two Muslim proselytizers; they shared a ride back to their respective homes as they had to go in the same direction. On his subsequent visit to the park, the claimant, in his efforts to defend and spread Christianity to the same two Muslim proselytizers, criticized, among other things, the Prophet Muhammad. In response, the Muslim proselytizers became angry and threatened to kill the claimant for insulting the honor of the Prophet Muhammad. The claimant and his friend left the park and decided to visit the park on another day so that they could preach to different Muslim proselytizers. On a third visit to the park, five or six Muslim proselytizers were expressing angry comments and threatening the claimant.

[10] After his last effort to proselytize, the claimant testified that several incidents took place. First, his security guard informed him of two people behaving suspiciously near the claimant’s home. While the claimant was briefly away in Nigeria to attend a Christian service that he believed would bless him for his personal safety, his mother informed him of an acid attack near her home that she believed, after speaking to others in the area, was an attack intended for the claimant and carried out by the Tabliq. The claimant returned to Uganda and hid in his mother’s home, whereafter there were two additional incidents, including finding a padlock at his mother’s home tampered with and hearing some commotion outside his mother’s home along with Islamic chants. His friend later informed him that these were attempts made by the Tabliq.

[11] The claimant’s testimony about his proselytization efforts was detailed, consistent with his BOC, and his responses to matters not set forth in his BOC was candid. In particular, the claimant was very detailed in testifying about what he said in his efforts to proselytize. The claimant’ s testimony about the incidents that followed was consistent with his BOC and somewhat detailed, and the claimant was emotionally expressive in his testimony.

[12] The claimant provided supporting documentation to corroborate his proselytization efforts and the incidents that ensued, including an affidavit from his mother,⁵ attesting to the incidents that occurred near her home, as well as an original physical copy of a newspaper article in the newspaper titled XXXX XXXX,⁶ which contains the claimant’s photo and states, apparently based on information provided by the claimant’ s relatives, that the claimant insulted the Prophet Muhammad and has fled Uganda in fear of retaliation from the Tabliq. The claimant testified that the newspaper is circulated nationally, and that the author of the article likely found out about his situation through his mother. The panel finds, on a balance of probabilities, that these documents help corroborate the claimant’s allegations regarding his proselytization efforts and the incidents that followed.

[13] Specifically, the panel finds, on a balance of probabilities, that the claimant engaged in proselytization efforts; that in the course of proselytizing, he expressed views critical of Islam and the Prophet Muhammad; and that he faced retaliation from the Tabliq.

[14] Given the credible testimony by the claimant, as well as the corroborating documentation cited above, the panel finds the claimant to be a credible witness. Therefore, the panel believes what the claimant has alleged in support of his claim and finds that his subjective fear of persecution due to his religion is established, on a balance of probabilities.

OBJECTIVE BASIS

[15] The objective documentary evidence in the national documentation package is limited and mixed as it relates to problems faced by Christians in Uganda in connection with Islamic religious extremism. One article describes the Tabliq as a fundamentalist faction of Ugandan Muslims, but notes that “[d]ifferent religions do not only coexist but even cooperate” in Uganda.⁷ Another article, however, notes that Uganda ranks “just outside the top 50 countries in which Christians are persecuted”⁸ and reports that “Christian groups living in areas affected by the presence of Islamic extremists face persecution.”⁹ The article documents several instances of Muslim who convert to Christianity being attacked.¹⁰ While the claimant himself is not a convert from Islam to Christianity, he was trying to convert Muslims to Christianity.

[16] The claimant provided numerous news articles documenting attacks by Islamic religious extremists against Christians, including for expressing views that are offensive to some Muslims and for Christian proselytization.¹¹ These articles document attacks from various regions in Uganda. The claimant also provided an article from the Africa Center for Strategic Studies, which describes the Tabliq as being religiously fundamentalist and having connections to terrorism.¹²

[17] The panel finds, on a balance of probabilities, that while ordinary Christians do not face persecution in Uganda, there is an objective basis to the claimant’s fear of returning to Uganda. This is because (i) the country conditions documents indicate that there are Islamic religious extremists in Uganda who attack Christians who express views offensive to Islam and for Christian proselytization, (ii) the claimant was involved in proselytizing to Islamic religious extremists and the nature of his proselytization involved expressing views that could be construed as offensive or blasphemous to Islamic religious extremists, and (iii) the claimant’s identity and story have been publicized in a widely circulated newspaper. Accordingly, the claimant has a well-founded fear of persecution in Uganda.

STATE PROTECTION

[18] In general, there is a presumption that state protection is available to the claimant and this presumption must be rebutted with clear and convincing evidence. Here, the claimant testified to going to the police after his security guard informed him of two people behaving suspiciously near his home. The claimant testified that the police requested a bribe and suggested that the claimant brought this upon himself by disturbing Muslims.

[19] The claimant submitted country conditions news articles indicating that the police in Uganda are generally viewed as being very corrupt, including due to bribery.¹³ In the national documentation package, the Uganda 2020 Crime & Safety Report by the Overseas Security Advisory Council notes that “[d]espite efforts to professionalize and modernize the force, the UPF still struggles with a lack of resources, corruption, and regular reports of human rights violations.”¹⁴ Freedom House provides Uganda with a score of 1 out of 4 in each of the subcategories under Rule of Law, including whether due process prevails.¹⁵ The United States Department of State notes numerous issues with policing in Uganda, including bribery.¹⁶

[20] The panel finds, on a balance of probabilities, that the claimant has rebutted the presumption of state protection in Uganda. This is because the claimant testified in a detailed and candid manner about trying to obtain state protection and being asked for a bribe, and the country conditions cited above indicate that such corruption is a serious issue in Uganda.

INTERNAL FLIGHT ALTERNATIVE

[21] The panel considered whether a viable internal flight alternative exists for the claimant, particularly in Mbarara, a large city located approximately 270 kilometers away from Kampala, where the claimant engaged in proselytization and faced retaliation.

[22] The claimant testified that proselytization of the kind of he engaged in is an important part of his religious practice that he would continue to engage in if he were returned to Uganda. Given the claimant’s previous proselytization efforts and his very detailed and expressive testimony about his previous proselytization efforts, the panel finds, on a balance of probabilities, that the claimant would continue to proselytize in the manner he did in the past if returned to Uganda. The claimant further testified that he is active on social media, which was supported by a copy of his Facebook activity log.¹⁷ According to the claimant, this could make it easier for those pursuing him to track him down. The claimant also testified, in a manner consistent with his BOC, that his mother has received threats directed toward the claimant.

[23] The panel finds, on a balance of probabilities, that the claimant would face a serious possibility of persecution throughout Uganda. This is because (i) the country conditions documents indicate that attacks by Islamic religious extremists on Christians, including for Christian proselytization, occur in various regions across the country; (ii) the claimant testified that proselytization of the kind he engaged in is important to his religious practice, which suggests that the claimant could draw adverse attention to himself from Islamic religious extremists, including those who are already pursuing him; (iii) the claimant is active on social media, which could make it easier for him to be tracked down; (iv) the claimant’s identity and story, including the allegation that he insulted Prophet Muhammad, have been publicized in a newspaper; and (v) the Tabliq group appears to remain interested in the claimant. These factors indicate that the religious extremists would have the means and motivation to pursue the claimant.

CONCLUSION

[24] Having considered all of the evidence, the panel finds that there is a serious possibility of persecution for the claimant in Uganda if the claimant returns to Uganda. The panel finds the claimant to be a Convention refugee and accepts his claim.

(signed) Suraj Balakrishnan

May 12, 2021

¹ Exhibits 2 and 9.

²Exhibit 1.

³ Exhibit 7.

⁴ Id.

⁵ Id.

⁶ Exhibit 13.

⁷ Exhibit 3, NDP 30 September 2020, Item 1.4, BTI 2020 Country Report – Uganda. Bertelsmann Stiftung. 2020. 22 September 2020.

⁸Exhibit 3, NDP 30 September 2020, Item 12.2, UGA106318.E. Immigration and Refugee Board of Canada. 17 July 2019.

⁹Id.

¹⁰ Id.

¹¹ Exhibit 7.

¹² Exhibit 13.

¹³ Exhibit 7.

¹⁴ Exhibit 3, NDP 30 September 2020, Item 7.2, Uganda. 2020 Crime and Safety Report. United States. Overseas

Security Advisory Council. 22 April 2020.

¹⁵ Exhibit 3, NDP 30 September 2020, Item 2.4, Uganda. Freedom in the World 2020. Freedom House. 2020.

¹⁶ Exhibit 3, NDP 30 September 2020, Item 2.1, Uganda. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020.

¹⁷ Exhibit 11.

All Countries Uganda

2020 RLLR 157

Citation: 2020 RLLR 157
Tribunal: Refugee Protection Division
Date of Decision: November 20, 2020
Panel: Sarah Acker
Counsel for the Claimant(s): Kingsley I Jesuorobo
Country: Uganda
RPD Number: TB8-31855
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000118-000122

DECISION

[1] MEMBER: This is the decision for the following claimant, XXXX XXXX, who claims to be a citizen of Uganda and is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act, the file number is TB8-31855. I’ve considered your testimony and the other evidence in the case and I’m ready to render my decision orally.

[2] I find that you are a Convention refugee on the grounds of your membership in a particular social group as civil society activist, specially a member of Sexual Minority’s Uganda SMUG, pursuant to s. 96 of the IRPA. The details of your claim are set out in your Basis of Claim form and are supplemented by your testimony at today’s hearing.

[3] In summary, you fear persecution in Uganda at the hands of the Ugandan government, state authorities and broader community due to your work as a XXXX XXXX XXXX for SMUG. You also allege that there is no state protection or internal flight alternative available to you in Uganda.

[4] Your country of reference and personal identity as a citizen of Uganda has been established on a balance of probabilities by your testimony and the following supporting document filed in Exhibit 1, namely a certified true copy of your Ugandan passport that was submitted to the Minister.

[5] I find that there’s a nexus between what you fear in Uganda and one of the five grounds enumerated in s. 96 of the IRPA, that is your membership in a particular social group, civil society activist, specifically an activist for Sexual Minorities in Uganda. Therefore, your claim is assessed under s. 96 of the IRPA and there is no need to conduct as. 97(1) analysis.

[6] In terms of your general credibility, I found you to be a credible witness with regard to the material issues in your claim. There were no significant inconsistencies or omissions between your BOC, testimony and the other evidence before me.

[7] Okay. You testified today that you were raised in a religious protestant environment and as a teenager, you heard your church leader speaking negatively about members of the gay community. You did not agree with their perspectives and stated that, “We are all human beings no matter our different beliefs”. When you were old enough, you left you childhood church and joined a church that was a place of worship and did not speak negatively about the LGBT, lesbian, gay, bisexual, transgender community.

[8] At your church, you met a man named WK who you befriended. After some time, WK revealed his sexual orientation to you as a gay man and told you about his involvement in a gay rights organization called SMUG. You joined SMUG as a straight ally and participated in discussions about how you could assist the LGBT community in Uganda.

[9] I asked you to tell me about that in greater detail. You testified that creating a safe network for the LGBT community was one strategy you helped SMUG work on. You explained that because being gay is illegal in Uganda, gay people need to be able to talk to trusted people who can help connect them with other trusted members of their network. You helped assist with this strategy.

[10] You also testified about you and SMUG members focused on trying to change societal perceptions of the gay community by encouraging participation of gay members in local communities, gaining the trust of people and civic organizations and then slowly their diverse SOGIE to individuals who have grown to accept them as human beings.

[11] You testified credibly and with knowledge about SMUG’s activities and your involvement in them. You also submitted a supported document from a safety and protection officer at SMUG in support of your claim. This letter contains SMUG’s contact information and logo in its letterhead. It describes your involvement in SMUG and the persecution you faced because of that involvement. I find this letter to be credible.

[12] You testified that members of SMUG have been targeted for their advocacy in the past, including a XXXX for the organization named XXXX XXXX (ph) who was murdered in 2011. You also mentioned receiving threats because of your involvement in SMUG. After attending a meeting at the XXXX Hotel, you started receiving threatening phone calls and text messages warning you to stop your association with the LGBT community. You were also approached near your home by a man, who identified himself as XXXX XXXX XXXX, claiming to be a father of a colleague of yours from SMUG. When you asked your SMUG colleagues if any of them knew XXXX XXXX XXXX, they said they did not. XXXX XXXX XXXX threatened to kill you “for spoiling his son” and promoting homosexuality. These details are confirmed by the SMUG letter that I mentioned earlier that can be found in Exhibit 6 of the consolidated list of documents.

[13] I, therefore, find on a balance of probabilities that you are involved as a straight ally in a gay rights organization in Uganda, called Sexual Minorities Uganda, and that you were threatened because of this affiliation. I also find on a balance of probabilities that you fear persecution because of your involvement with SMUG.

[14] While I have credibility concerns about other parts of your evidence, those concerns did not outweigh the allegations that were proven on a balance of probabilities. Given that you have credibly made out key allegations and established a subjective fear of persecution, the other concerns that I had are not determinative. I, therefore, find on a balance of probabilities that you have a subjective fear of persecution in Uganda because of your civil society activism, particularly your membership in SMUG.

[15] As a result, and it’s mentioned previously, this claim is being assessed under s. 96 of the IRPA and I find that you have established a nexus to a Convention ground, namely your membership in a particular social group, civil society activist for Sexual Minorities in Uganda.

[16] In addition, to your credible testimony and the other evidence before me today, the objective evidence in this case supports your claim. Same sex acts are criminalized in Uganda. Section 145 of Ugandan Penal Code Act criminalizes, “Carnal knowledge against the order of nature”, the sentence is life imprisonment. NDP Item 6.1 explains that this section of the penal code is often used to prosecute men for same sex activities and also criminalizes activities in support of sexual minority rights.

[17] NDP Item 2.9 reinforces that advocating on behalf of the LGBT community in Uganda is considered, “Promoting or committing a hate crime — or, pardon me, a crime”. Gay rights activists face a myriad of threats, physical, verbal, digital and are under constant surveillance. Instances of documented threats and violence against gay rights activists include NDP Item 2.9 in Bunamwaya July of 2018, a staff member of a human rights organization for transgender people was attacked outside of his office. In December of 2010, as you’ve mentioned, David Keto, a gay rights activist who was outed as a gay man in a Kampala (ph) tabloid was murdered.

[18] NDP Item 6.1 provides examples of SMUG activities being unlawfully detained and tortured by Ugandan state authorities because of their work. This is the organization that you worked for. The NDP states, “In July of 2008, an activist with the organization Sexual Minorities Uganda alleged that police tortured and humiliated him during an illegal detention.” In 2009, SMUG reported further police harassment of its members. Two activists, FW and BM were arrested on April 5th, 2019 and charged with, “Homosexual conduct” on April 17th of that year. The men were remanded to Maluke (ph) prison, where they were detained for several weeks until released on bail.

[19] NDP Item 2.9 discusses the effect of this targeting on gay rights advocates in Uganda. The NDP states that with offices broken into and people assaulted, this causes an environment of fear and uneasiness that can affect human rights defenders’ mental health, provide them anxiety, depression, feelings of isolation and post-traumatic stress disorder. NDP Item 4.4 states that the human rights awareness and promotion forum, a group that promote minority rights in Uganda, suffered its second break-in on February 9th of 2018. Overall, 30 non-governmental organizations have had their offices broken into since 2012. NDP 4.6 details other types of government attacks on gay rights activists. For example, on April of 2014, the LGBT community in Uganda was reportedly targeted by Zeuz (ph) Malware, a spyware often used to steal banking information through techniques including keystroke logging and form grabbing. Human rights defenders routinely report theft of servers and other computer material and hacking of websites.

[20] In summary, the National Documentation Package cites numerous acts and threats of physical and cyber violence against gay rights activists in Uganda. I, therefore, find on a balance of probabilities that your subjective fear of persecution on account of your political activism with SMUG in Uganda has an objective basis and is well-founded. I am satisfied that you face a serious possibility of persecution if you were to return to Uganda.

[21] While states are presumed to be capable of protecting their nationals, it is open to a claimant to rebut the presumption of protection with clear and convincing evidence. In this case, one of the agents of persecution is the state because of board facing persecution that you would face in Uganda is at the hands of state authorities, given that your conduct is considered to be promoting a crime. Under personal circumstances as well as the objective country documentation, I find on a balance of probabilities that you have rebutted the presumption of state protection with clear and convincing evidence, and that there is no state protection available to you.

[22] Given that the state is the agent of persecution and there is no objective evidence that shows the state does not have control over the entire country of Uganda, I find on a balance of probabilities that you would face a serious possibility of persecution throughout Uganda, and therefore, a viable internal flight alternative does not exist for you.

[23] Having considered your testimony, the documentary evidence presented and the objective evidence before me, I find that there is a serious possibility persecution in Uganda at the hands of the Uganda government and its security forces, as well as the broader Ugandan community if you return there. For the aforementioned reasons, I conclude that you are a Convention refugee pursuant to s. 96 of the IRPA and I accept your claim.

[24] So, XXXX XXXX XXXX, that concludes my decision and that concludes today’s hearing. Thank you for your participation in your hearing today, and thank you to Counsel for your assistance, and I wish you all the best. Stay healthy.

CLAIMANT: Thank you so much, Madam Member.

COUNSEL: Thank you.

MEMBER: My pleasure, be well.

COUNSEL: Thanks.

MEMBER: Bye, bye.

COUNSEL: Bye, bye.

CLAIMANT: Bye.

– – – – – – – – – – – – REASONS CONCLUDED – – – – – – – – – – – –

All Countries Uganda

2019 RLLR 151

Citation: 2019 RLLR 151
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2019
Panel: Chad Prowse
Counsel for the Claimant(s): (no information)
Country: Uganda
RPD Number: VB9-00024
Associated RPD Number(s):
ATIP Number: A-2022-00210
ATIP Pages: 000164-000168

— DECISION AND REASONS BY THE MEMBER

[1] PRESIDING MEMBER: XXXX XXXX, I’ve considered your testimony and the other evidence in this case and I’m ready to render my decision orally. I would like to add that in the event that written reasons are issued, they will reflect those that I’m giving you now.

[2] XXXX XXXX XXXX is a citizen of Uganda who claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3] Her complete allegations are contained in her Basis of Claim form and narrative. A brief summary follows.

[4] The claimant worked as an XXXX XXXX XXXX XXXX at the XXXX XXXX Research Institute, the XXXX, from 2014 onwards. Beginning in XXXX 2018 she secretly began providing XXXX to clients at her home in XXXX XXXX The clients were referred to her by XXXX XXXX (ph) an LGBT activist in Uganda working at XXXX XXXX XXXX XXXX XXXX.

[5] The claimant believed in the work that XXXX and other activists were doing in Uganda, advocating for human rights for LGBT persons. This is why she got involved in this work.

[6] The claimant was subsequently accused by her community, including the local village counsel, of accommodating LGBT persons and teaching immoral acts due to her counseling sessions out of her home.

[7] On the XXXXof XXXX XXXX 2018 the claimant was arrested by a police officer accompanied by village security personnel. She was released on a police bond. Following her release she was harassed by members of the community and perceived to be a lesbian. She received death threats.

[8] She moved with her family to another community, XXXX XXXX, for their safety. Shem found an agent through a friend who helped her get a Canadian visa which was issued on XXXX XXXX 2018.

[9] The claimant is afraid that she will be arrested and prosecuted in Uganda on the false charge of promoting immoral acts. She’s also afraid of becoming the victim of mob justice as a result of her work with the LGBT community or as a perceived lesbian.

[10] The determinative issue in this case is credibility.

[11] The claimant’s identity as a citizen of Uganda is established by her testimony and the supporting documentation filed, including a certified true copy of her passport.

[12] With respect to credibility, when a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. Overall, I found the claimant to be a credible witness.

[13] For the most part, she testified in a straightforward manner and there were not material inconsistencies or omissions in her testimony or contradictions between her testimony and the other evidence before me that have not been explained.

[14] There were a few omissions in the claimant’s testimony and her testimony occasionally lacked detail; however, I agree with counsel that these issues were generally minor and/or could be explained by her serious nervousness during the hearing.

[15] A few questions arose during the hearing about a number of the documents that the claimant provided in support of her claim, principally the Uganda police bond form. During the hearing I noted that the document provided by the claimant is different in form and content than the contemporary example provided in the NDP. Additionally, some of the printed details on the form appear to be inaccurate relative to objective evidence about the Criminal Code and Procedures in Uganda. Moreover, there is a conspicuous spelling error on a printed part of the form.

[16] Counsel addressed a few of these issues in her submissions. For example, she produced a wide variety of purported Uganda police documents as a result of a Google search; however, it is unclear that any of these are from an official source or are contemporary with the claimant’s allegations. Therefore I prefer the document in the NDP.

[17] While it’s far from clear that the bond form is fraudulent or improperly issued I assign little weight to the document as a result of these concerns.

[18] The claimant also produced a news article from the Red Pepper newspaper, apparently corroborating the basic details of her narrative.

[19] While the research produced by the Research Directorate about this publication, that is the Red Pepper, indicates that the paper is a purveyor of, to use counsel’s words, salacious news articles which are not necessarily grounded in fact, overall I find that this evidence actually supports her case.

[20] I accept that this is a genuine so-called news article that was actually published in Uganda.

[21] I agree that it is implausible that the claimant would plant this story herself given the harm that this would subject her and her family to and the fact that it exists is likely evidence of the campaign in Uganda to our and/or harm her.

[22] Notwithstanding the few identified credibility issues in this claim, I find that the overwhelming burden of evidence on file which includes letters of support from NGOs and other persons, reliable evidence of her employment and her credentials and so on and so forth, is reliable and corroborates her claim and central allegations.

[23] On a balance of probabilities I find that the claimant has established that she was an XXXX XXXX XXXX XXXX and activist in Uganda; that she was threatened and effectively chased out of her community because of her views about and acceptance of LGBT persons; and as a perceived lesbian.

[24] The available country evidence in the NDP together with the evidence disclosed by the claimant establishes that there is an objective basis for her fear of persecution. I accept counsel’s submission that the claimant has a well-founded fear of persecution on the basis of imputed membership in a particular social group, in addition to on the basis of political opinion.

[25] According to the Chairperson’s Guideline 9, individuals may be subjected to persecution by reason of their perceived or imputed SOGIE. Examples may include individuals who do not fit stereotypical appearances or conform to socially accepted SOGIE norms may be perceived as individuals with diverse SOGIE when they are not.

[26] Those advocating for or reporting on SOGIE rights may be perceived to be individuals of diverse SOGIE and individuals who provide support for individuals of diverse SOGIE, for example, partners who remain with individuals of diverse SOGIE through, for example, gender re-assignment surgeries, may be perceived to be individuals with diverse SOGIE.

[27] I find that some of these circumstances apply to the claimant.

[28] Additionally, the Chairperson’s Guideline states that in addition to their status as an individual with diverse SOGIE, political activism by an individual to promote SOGIE rights may put that individual at increased risk of persecution. In other words, persons may also have a well-founded persecution by reason of political opinion when they are promoting SOGIE rights.

[29] I find that on a balance of probabilities the claimant falls into that category or would be perceived to be.

[30] In Uganda, same sex sexual activity is criminalized under the Penal Code which prohibits unnatural offenses and acts of gross indecency. Popular support for new laws imposing harsher punishments for persons believed to be homosexual culminated in the anti- homosexuality bill of 2009.

[31] While the anti-homosexuality bill of 2009 was annulled in 2014, meaning that the promotion of homosexuality is no longer criminalized, Ugandans are no longer seemingly required to report gays and lesbians to authorities, homosexuality remains a criminal offense under Uganda’s Penal Code.

[32] The United States Department of State report on Uganda identifies violence and discrimination against marginalized people, including LGBT persons as one of the country’s greatest human rights problems. According to the United States Department of State LGBT persons face discrimination, legal restrictions, societal harassment and violence, intimidation and threats. There’ s considerable evidence, as counsel pointed out, that LGBT activists, that is persons who are actively advocating for the rights of LGBT persons – and I would put the claimant in that category – also face a serious possibility of persecution.

[33] The UK Country of Origin report for Uganda on sexual orientation and gender identity, for example, refers to a report by Sexual Minorities Uganda, SMUG, who in their 2018 report stated that health workers still carry out forced anal examinations when the Uganda police forces individuals who have been arrested for homosexuality, sodomy or carnal knowledge against the order of nature to be examined.

[34] The police were once again the biggest violators of the rights of LGBT persons in Uganda in 2017 according to the same UK Home Office report although there were much fewer violations perpetrated by the police in this year than in any previous years. A high propensity to violate the rights of LGBT persons is easily explained by the fact that the police often interfaces more with LGBT persons, especially when they’ve come into conflict with the law and the limited levels of knowledge and understanding of LGBT person issues among the members of the police force.

[35] Human Rights Watch noted in its November 2016 submission to the Universal Periodic Review that the government has increasingly sought to curtail the work of NGOs workingon topics considered sensitive to the government such as governance, human rights, land,oil, and the rights of LGBT persons. Tactics include closure of meetings, threats, andheavy-handed bureaucratic interference.

[36] Additionally, concerns remain that the 2016 NGO law effectively criminalizes legitimate advocacy and the rights of lesbian, gay, bisexual transgender people, LGBT persons. An Independent article – an article in The Independent – Gay Rights Activists Defy Again the Law by Publishing New LGBTI Magazine, dated January 2015, stated gay rights activists in Uganda have risked detention by police, threats of violence and death threats to publish a new magazine showing the stories of the country’s lesbian, gay, bisexual, transgender and intersex community.

[37] There are many other similar references in the NDP.

[38] With respect to state protection and internal flight alternative, I find the claimant has rebutted the presumption of state protection and that she does not have a viable internal flight alternative. In this case, the state is either the agent of persecution or effectively grants impunity to the non-state agents of persecution.

[39] The evidence shows that social attitudes towards LGBT persons and activists are more or less uniform across the country. While the claimant is not herself a lesbian, she is perceived to be one in Uganda due to her XXXX XXXX XXXX XXXX work with members of her community which, in itself, is rooted in her political opinion about human rights of LGBT persons.

[40] Over and above this, the objective evidence shows that her works as an LGBT activist, once again rooted in her political opinion, puts her at risk from state and non-state agents.

[41] Therefore, having considered all of the evidence before me, I determine that there is a serious possibility that the claimant would be persecuted in Uganda on grounds of imputed membership in particular social group and political opinion. Therefore, I find that the claimant is a Convention refugee and I accept her claim.

— PROCEEDINGS CONCLUDED

All Countries Uganda

2020 RLLR 104

Citation: 2020 RLLR 104
Tribunal: Refugee Protection Division
Date of Decision: February 24, 2020
Panel: M. Saleem Akhtar
Counsel for the Claimant(s): Jonathan E Fedder
Country: Uganda
RPD Number: TB9-04769
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000140-000147

REASONS FOR DECISION

INTRODUCTION

[1] The principal claimant, [XXX], and the associate minor claimant, [XXX] (collectively called claimants) are citizens of Uganda and seek refugee protection, pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act“)^[1]. The principal claimant who is the biological mother of the minor claimant has been appointed as the designated representative for him.

ALLEGATIONS

[2] The allegations of this claim are found in the claimants’ Basis of Claim (BOC) Forms.^[2] In short, the principal claimant alleges that she was physically, emotionally and psychologically abused and threatened in Uganda and fears persecution to her as well as to her son, by her former common-law partner, [XXX] (AB) and his family, should they return to Uganda. AB is the biological father of the minor claimant in this matter.

[3] The principal claimant further alleges and believes that there is no adequate state protection available to them in Uganda, nor any place for them to live in safety in Uganda due to AB’s official position serving as a member of the Special Forces Command providing security to the President of Uganda.^[3]

DETERMINATION

[4] I find [XXX] and [XXX], to be Convention refugees, within the meaning of section 96 of the Act. The reasons of my decision are as follows:

FACTS AND ANALYSIS

[5] In arriving at this decision, I considered the principal claimant’s oral testimony, documentary evidence^[4], the counsel’s oral submissions, and the relevant portions of the documents contained in the National Documentation Package (NDP) pertaining to Uganda^[5].

[6] In addition, I considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and Guidelines on Child Refugee Claimants.

The Claimants’ Identity and Country of Reference Established

[7] I find, on a balance of probabilities, that the principal claimant has established her personal identity and her country of reference (Uganda) as well as that of the associate minor claimant. I have relied on certified copies of their Ugandan passports^[6], and the oral sworn testimony of the principal claimant.

Nexus Established

[8] I find there is a nexus between what the principal claimant fears and one of the Convention grounds, specifically, as a woman who has experienced domestic abuse and persecution, she is a member of a particular social group because of her gender. I also find there is a link: between what the minor claimant fears as associated risk and one of the Convention grounds, specifically, by virtue of being a minor dependant of the principal claimant who is his biological mother. Therefore, these claims have been assessed under section 96 of the Act.

The Principal Claimant was Credible

[9] Generally, a claimant’s evidence given under oath is presumed to be truthful unless there are valid reasons to doubt its veracity. The determination regarding whether or not evidence is credible is made on a balance of probabilities.

[10] In this case, I found the principal claimant’s testimony made on her personal behalf as well as on that of the associate minor claimant mostly credible about the threats and persecution they suffered at the hands of AB and his family. Over all, the principal claimant’s testimony was consistent with the BOC, and corroborated by the supporting documents. She testified in a straightforward manner about their fears without embellishment, and there were no inconsistencies that went to negatively impact the core of the claim. Her answers were generally spontaneous. She provided details and expanded the conversation as it related to her relationship with AB and the abuse she and her son sustained at the hands of AB and his family.

[11] The principal claimant was able to provide details about how her relationship started and progressed over-time, how she initially liked and enjoyed her relationship with AB including activities she and AB did together in Uganda. However, the relationship between the principal claimant and AB’s family has always been one of mistrust, having divergent views about how she and her minor son should be treated in terms of Mukyankole Muhima clan traditions. She belongs to Muganda tribe. She testified she did not know that the Muhima people, particularly the elite, do not mix with other Ugandans. This is more important and truer when it comes to marriages, as they generally do not marry outside the tribe.

The Claimants’ fear of persecution

[12] In her BOC as well as in her sworn oral testimony, the principal claimant testified that she and AB met in 2010 while both of them were studying at the [XXX] University in Uganda. After learning that she was pregnant, she proposed to him for formal marriage, which he, initially, resisted, however, she convinced him to get married. AB did not invite his family to this marriage because the principal claimant was not from his tribe. The principal claimant testified that, at the time when she met him and became pregnant, she did not know that AB belonged to Muhima tribe and that he was a member of the Special Forces Command, serving the President of Uganda. After the birth of their son, both the principal claimant and AB started living together. Despite that, AB never formally introduced her to his family, as his wife, because he was afraid that his family would not accept her due to her belonging to a different tribe.

[13] The principal claimant testified that when AB’s family learned about the relationship between her and AB, they expressed their shock. People of Muhima tribe are particular about protecting their bloodline, and do not approve of a Muhimi man producing children with a non Muhimi woman. AB started distancing himself from the claimants. In [XXX] 2014, the claimant learned that AB had married a Muhimi woman. When she confronted him, he became violent. He physically assaulted her and hit her with a belt and pushed her into a cupboard, causing back injury. She reported the abuse to the Nalya Police Station. They did not help her. They advised her to go back home and resolve the matter within the family. However, they promised to call him and speak to him, which she believed, they never did.

[14] The principal claimant testified that, in 2015, AB’s attitude and behaviour towards her and their son became markedly negative and abusive. He demanded that their son should not carry surname “BIRARO” because AB no longer wanted to recognize him as his son due to his ‘impure Muhima heritage’. The principal claimant objected to that, which resulted in AB’s more physical and emotional abuse towards the claimants. He would beat up, punch and kick her frequently. On one of such occasions, when she sustained more visible injuries, she went back to the Nalya Police Station, hoping that after seeing physical injuries resulting from the physical abuse by AB, police officials would help her and provide protection. But, their response was – go back and resolve the matter within the family. For the next more than two years, she sustained physical and emotional abuse of various degrees. She again approached police in May 2017, and sought protection. But, this time, too, she did not get any assistance from police. In fact, one of the police officials mocked saying “Can’t you see that you are Muganda and he is Muhima.”

[15] In early July 2018, AB told the claimant to leave his home as early as possible. Later, on July 21, 2018, he came home agitated and asked why she was still there at his home. He also accused her of damaging the property. He assaulted, punched and kicked her, causing damage to her spleen. In August 2018, she packed up her personal stuff and moved to an Airbnb. A few days later, when she went to pickup her son from the daycare, she was told that one of AB’s friend, whom the claimant also knew, had taken the child on AB’s command. The claimant was upset at this ‘abduction’. However, she successfully managed to retrieve the son against the wishes of AB.

[16] After realizing that her son could be abducted and harmed and that police would not protect the claimants against powerful AB, the claimant, along with her son, decided to leave Uganda for Canada, for safety reasons. Upon arrival in Canada, the principal claimant filed a refugee protection claim for herself as well as for the minor claimant.

[17] I noted the claimant’s failure to seek asylum in 2017 and 2018 when she visited the United States and Germany respectively. This issue was put to the claimant who testified that she did not seek asylum because, on both occasions, she had come to attend work-related conferences and that her son was not with her on both occasions because she could not get visa for her son. She testified she thought and wanted to do file refugee protection claim in the U.S. or in Germany, but, she could not imagine leaving her son in Uganda at the mercy of AB and his family who were already bent upon hurting him and eliminating him.

[18] I find the claimant has adequately explained failure to claim asylum in the United States of America. I find her explanation reasonable within the given circumstances, and, therefore, will not draw any negative credibility inference regarding subjective fear.

Supporting Documents

[19] In support of her claim and that of the minor claimant, the principal claimant produced several documents, including identity documents, police reports, medical reports from Uganda and psychological assessment and medical reports from Canada, affidavits from friends in Uganda, letters of support from Ugandan and Canadian friends including letters from the minor claimant’s teachers in Uganda, a letter of support from the Canadian Centre for Victims of Torture (CCVT), some relevant emails and text messages, some relevant family photos, and country conditions^[7]. These documents mostly corroborate the claimant’s narrative. On a balance of probabilities, I find the claimant’s testimony as well as the documents submitted to be credible.

Subjective Fear

[20] The principal claimant gave details as to how badly she and the minor claimant were treated, emotionally and psychologically, by AB. She testified they were living in Uganda under constant fear of harassment, persecution and death threats. Her son had to stop attending school due to constant fear of being abducted and harmed, may even be killed. She further testified she was not helped by the police, despite her reaching out to them multiple times for protection.

[21] I find the principal claimant’s testimony on her personal behalf as well as on behalf of the associate minor claimant, credible in relation to the core of the claim. I find, on a balance of probabilities, that the abuse and death threats occurred, as alleged. I also find there is more than a mere possibility of persecution against the claimants at the hands of AB and his family, based on their clan influence as well as AB’s high position in the government whereby they could threaten and harm the claimants with no fear of punishment by the State. Hence, I find the claimants have established their subjective fear.

Objective Basis Established

[22] The NDP sources for Uganda note that domestic violence is widespread in Uganda, and offenders are rarely prosecuted^[8]. The same sources note the existence of hatred and violence based on clan differences, particularly, in matters of marriages.

[23] The NDP sources add that Ugandan society generally does not consider domestic abuse a crime, and police officers often do not consider it a serious offence, rather, they treat it as a family matter and generally advise the victim to resolve the matter within the family. This is all the more so when the agent of persecution is influential, resourceful and connected with the government, as is the case in this claim. These sources also indicate that the police do not, generally, interfere in clan mattes. They consider that such matters should be resolved by clan leaders, based on their traditions.

[24] I find the claimants have established objective basis for their claims. Hence, I find the claimants has established a well-founded fear of persecution against them in Uganda.

Adequate State Protection Not Available

[25] I find that the principal claimant has rebutted the presumption of state protection with clear and convincing evidence. The NDP for Uganda states that the police often treat domestic abuse as a family matter, and do not consider it a serious offence^[9]. Similarly, the police leave the clan differences to be resolved by clan chiefs. Despite such an attitude of the police, the claimant asked for police protection, at least three times, but she did not receive any protection.

[26] I find, on a balance of probabilities, that the state is unable or unwilling to protect the claimants, particularly considering that the principal agent of persecution (AB) is a high official in the government, connected with the Special Forces Command who provide security to the President of Uganda. As such, I find that, on a balance of probabilities, adequate state protection would not be available to the claimants.

No Viable Internal Flight Alternative (IFA) Available

[27] The available country conditions’ evidence as per the NDP for Uganda and the claimant’s sworn testimony are consistent about the prevalence of corruption among police services in Uganda. This would make AB who is influential and well-connected with the government to corrupt the police forces, and thus, on a balance of probabilities, diminish the viability of any IFA for the claimants. As such, I find the claimants have established that there is more than a mere possibility of persecution against them, and that, on a balance of probabilities, there would not be a viable IFA for the claimants anywhere in Uganda.

CONCLUSION

[28] I find there is a serious possibility that the claimants would face persecution, should they return to Uganda.

[29] Having considered the totality of the evidence, I find that the principal claimant, [XXX] and the associate minor claimant, [XXX], are Convention refugees, pursuant to section 96 of the Immigration and Refugee Protection Act.

[30] Therefore, I accept these claims.

^[1] Immigration and Refugee protection Act, S.C. 2001, c.27, as amended, and package of information from the referring CIC/CBSA (pages un-numbered).

^[2] Exhibit 2, Basis of Claim (BOC).

^[3] Exhibits 2, 5 to 7.

^[4] Ibid.

^[5] Exhibit 3, NDP for Uganda, June 28 29, 2019.

^[6] Exhibit 1, Package of information from the referring CIC/CBSA (pages un-numbered).

^[7] Exhibits 1, 2, 5 to 7.

^[8] Exhibit 3, NDP for Uganda, June 28, 2019, items 2 and 5.

^[9] Ibid.

All Countries Uganda

2020 RLLR 70

Citation: 2020 RLLR 70
Tribunal: Refugee Protection Division
Date of Decision: February 19, 2020
Panel: Dominique Setton
Counsel for the Claimant(s): El-Farouk Khaki
Country: Uganda
RPD Number: TB7-23049
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000069-000074

REASONS FOR DECISION

[1] These are the reasons for the decision in the claim of [XXX], who claims to be a citizen of Uganda, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).^[1]

[2] In rendering my reasons, I have considered and applied the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.^[2]

ALLEGATIONS

[3] You allege the following. The details of your life are contained in your Basis of Claim Form (BOC) provided in evidence.^[3] You allege domestic violence by your father, and your husband. Your father forced you to marry a man who was 24 years older than you, whom you did not want to marry. The marriage occurred on [XXX] 2015. Following the marriage, you had to endure violence and mistreatment at the hands of your husband. He did not allow you to eat, or provide you with food. He raped you and was violent with you on numerous occasions, causing bodily injury, which required medical treatment.

DETERMINATION

[4] I find that you are a Convention refugee as you have established a serious possibility of persecution on account of your member of a particular social group. You are a woman who is the victim of domestic violent, both as a child and in your forced marriage.

ANALYSIS

Identity

[5] I find that your identity as a national of Uganda is established by your testimony and the supporting documentation filed, including your passport.^[4]

Credibility

[6] Unless specifically noted in the analysis below, I accept your evidence about the events you encountered in Uganda as being generally credible.

[7] You have provided documents which support your allegations of domestic violence, which are contained in the evidence, such as confirmation of your birth and marriage, medical reports or records, which include photos of your injuries.^[5] You also submitted letters of support from your mother, as well as a letter to you from your mother, a letter from your sister, who had been forced into marriage herself by their father, a friend of hers who helped her to escape and hide out from both her father and her husband.^[6]

Objective basis of future risk

[8] You fear that if you return to your country, your husband will find you, kill you, or maim you, as he has threatened, because of your escape. In addition, you fear continued rape and violence from your husband and your father.

[9] The documentary evidence in our National Documentation Package (NDP), specifically the United Nations Development Programme’s Uganda Country Gender Assessment, corroborates your allegations:

[t]here is a disconnect between Uganda’s very positive legal framework and the lack of effective implementation or enforcement of gender-positive laws. This means that women’s legal status is precarious, their capacity as economic agents is limited, and their rights are not effectively guaranteed.^[7]

[10] It also states that the country suffers from persistent high level of sexual and gender-based violence. This is also corroborated by the United States Department of State (DOS) report, which confirms that that there are three serious human rights problems in Uganda, which are respect for individual integrity, restrictions on civil liberties, and violence and discrimination against marginalized groups, such as women and children,^[8] which is precisely what you have alleged in your BOC narrative and in your sworn testimony.

[11] Based on the credibility of your allegations, and the documentary evidence set out below, I find that you have established a future risk that you will be subjected to the following harm: risk of personal harm to yourself, violence, mistreatment, and death.

[12] The fact that you face this risk is corroborated by the following documents from the Board’s June 28, 2019 NDP for Uganda: the US DOS report, and the Uganda Country Gender Assessment, both noted above, as well as a recent Response to Information Request regarding forced marriages.^[9]

Nature of the harm

[13] This harm clearly amounts to persecution.

State protection

[14] I find that there is clear and convincing evidence before me that the state is unable or unwilling to provide you with adequate protection. You alleged in your BOC, and provided detailed testimony regarding the efforts you made at obtaining help from the police on several occasions. You also submitted a letter, dated [XXX] 2015, showing that you went to the police to try to obtain their protection. You testified that the police told you to go home to your husband, and did not provide effective assistance. This is is corroborated by numerous additional, current articles you submitted as evidence.^[10] The first article from Africa Renewal of December 20, 2107 exposes the problems that a female member of parliament has experienced in 2017 despite her rise in politics.^[11] The victim and elected representative describes men who are current members of parliament who harass her, by overt physical methods and by hounding her. She is frustrated by this and says that “harassment is commonplace in Parliament”, where even there it goes unreported “because we fear the consequences.”^[12] The article summarizes the efforts that Uganda has made by passing laws against violence towards women, but how violence is on the rise, despite the laws and policies. In the second report regarding the ineffectiveness of state protection which you provided in evidence, from the University of Sheffield, from April 2018, Uganda – Gender Based Violence Police Briefing, it states that:

Lifetime prevalence of GBV in Uganda is estimated at 51%… suggesting that violence against women is rampant in the country. This statistic is well above the average in Africa and worldwide, making Uganda one of the most dangerous places in the world for women.^[13]

[15] Based on the analysis above, I find, on a balance of probabilities, that adequate state protection is not available to you.

Internal flight alternative

[16] I have considered whether a viable internal flight alternative exists for you in Kampala, a large city centre where you may be able to support yourself, and live independently. On the first prong of the test,^[14] you have testified that your husband and your father continue to search for you. You provided an email message from your friend dated [XXX] 2019, which confirms that they are looking for you, and that your husband threatened her for any information about you.^[15] In addition, your sister has advised you in email messages that two men forcefully searched your mother’s home in Kampala, looking for you, and she believes that they have been sent by your husband.^[16] You have also received threatening email messages from your husband, which included one dated [XXX] 2018.^[17]

[17] Your friend, [XXX] advises you not to telephone her, as her cellular phone may be tapped. On the evidence before me, I find that there is a serious possibility of persecution throughout Uganda. You alleged that your father and or husband could easily find you wherever you go in Uganda, because your cell phone’s SIM card is registered. You have provided evidence of this in the article entitled, Uganda Telecom Operators to Obtain Users Biometrics and Photos which confirms that the National Identity Registration Authority (NIRA) requires that cell phones be registered for security reasons.^[18] The result is that the service operators have all biometric and personal information. You fear that you could easily be tracked because of this, as these service providers are also not secure as the information that they have has been breached. This article states that other Ugandans who had had their phones hacked sought help from the Uganda Communication Commission (UCC), but the UCC were unable to assist the victims due to a lack of “technical capacity to prevent data breaches.”^[19] The article confirms that there is continued exposure of the public to data breaches, obtained illegally. As a result, I find that your father or your husband could access the information, and track you through your cellular phone wherever you attempt to go, in Uganda, including Kampala.

CONCLUSION

[18] Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.

^[1] The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).

^[2] Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.

^[3] Exhibit 2, Basis of Claim Form (BOC).

^[4] Exhibit 1, Package of lnformation from the Referring CBSA/CIC, Certified True Copy of Passport.

^[5] Exhibit 7, Personal Disclosure received December 6, 2019, at pp. 1-2, 8-10, and 34-35.

^[6] Ibid., at pp. 37-48.

^[7] Exhibit 3, National Documentation Package (NDP) for Uganda (June 28, 2019), item 5.5.

^[8] Ibid., item 2.1.

^[9] Ibid., item 2.1, and 5.5-5.6.

^[10] Exhibit 8, Country Conditions # 1, at pp. 1-6 and 13-16.

^[11] Ibid., at pp. 1-6.

^[12] Ibid., at p. 1.

^[13] Ibid., at p. 14.

^[14] Rasaratnam, Sivaganthan v. ME.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

^[15] Exhibit 7, Personal Disclosure received December 6, 2019, at pp. p. 56.

^[16] Ibid., at pp. 30-33.

^[17] Ibid., at p. 21.

^[18] Exhibit 10, Country Conditions #2, at p. 3.

^[19] Ibid., at p. 3.

All Countries Uganda

2020 RLLR 63

Citation: 2020 RLLR 63
Tribunal: Refugee Protection Division
Date of Decision: October 13, 2020
Panel: S. Chauhan
Counsel for the Claimant(s): Juliette Ukpabi
Country: Uganda
RPD Number: VC0-02644
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000020-000029

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the claim of [XXX] (the “claimant”), who is a citizen of Uganda, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).^[1]

[2] In rendering it’s reasons, the panel has considered the Chairperson’s Guideline on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE).

ALLEGATIONS

[3] The following is a brief synopsis put forth by the claimant in her Basis of Claim (BOC) form.^[2]

[4] She fears persecution at the hands of the society, her husband, and the government of Uganda due to her sexual orientation.

[5] The claimant is a bisexual woman. She first had a same-sex relationship at the age of 17 in 1996. Her mother suspected her of being a lesbian, hence the claimant was enrolled in a religious school. In 2002, she joined [XXX] University and met her girlfriend, [XXX]. They began a serious relationship, which continues to date. The claimant and [XXX] were suspended from university in the final year after being caught in sexual activities on the campus.

[6] The claimant married her husband on [XXX], 2009 due to family and societal pressure. She gave birth to her daughter in 2013. However, her husband mistreated her and used to sexually abuse her. She tried to leave him many times but every time he would find her and compel her to come back. In the meantime, the claimant continued her relationship with [XXX].

[7] On [XXX], 2017, the claimant’s husband caught her in an intimate position with [XXX] and beat her up. The neighbours came to know about the claimant’s sexual orientation and told her husband that they do not want her living in that neighbourhood as she will be a bad influence on their children. The next day, on [XXX], 2017, the claimant’s husband took all the evidence about the claimant’s sexual activities from her phone and presented it to the village elders. She was locked up in prison. However, the claimant’s brother-in-law, who is a [XXX], helped her escape the prison on [XXX], 2017.

[8] The claimant went into hiding with the assistance of her sister and [XXX]. The claimant’s husband and her community members, meanwhile, continued to search for her.

[9] The claimant was able to escape Uganda with the help of an agent on [XXX], 2019. She reached Canada on [XXX], 2019 and filed for refugee protection.

DETERMINATION

[10] The panel finds that the claimant is a Convention refugee as she has established a serious possibility of persecution on account of her membership in a particular social group for the following reasons.

ANALYSIS

Identity

[11] The claimant did not have a passport on her when she reached Toronto on [XXX], 2019. The panel asked the claimant if she had a passport issued to her by any country. She stated that she has her original Ugandan passport with her at the hearing. A copy of this passport is marked Exhibit 5. She was asked if she travelled from Uganda to Canada using this passport. The claimant explained that she travelled from Uganda to [XXX] using this passport. When she reached [XXX], the agent who was assisting her in her escape, then took her passport from her and gave her another passport with her picture but with a different name and date of birth on it. That passport had a visa to Canada on it. When they reached Toronto, the agent took all the documents from her and left her alone at the airport.

[12] The claimant was then asked how she has her passport on her if the agent took her passport from her. She stated that he returned to Uganda and handed her original passport to her sister. Her sister then couriered the passport to her (claimant) in Canada. The claimant showed the delivery receipt and envelope used to mail the passport using the DHL courier service to the panel.

[13] Based on the claimant’s reasonable explanation, as well as the documentary evidence produced at the hearing, the panel is satisfied with the claimant’s identity as a Ugandan national and accepts that she is who she says she is. Specifically, the panel finds that the claimant’s identity as a national of Uganda has been established, on a balance of probabilities,

based on her sworn statement and copies of her Ugandan National Identification Card^[3] and Ugandan passport on file.

Credibility

[14] At a Refugee Protection Division (RPD) hearing, the presumption before the panel is that a claimant’s testimony is true; however, this can be rebutted in appropriate circumstances such as inconsistencies, contradictions, omissions and undetailed testimony. However, this was not the case here. The claimant testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before the panel. She did not appear to embellish her testimony at any point.

[15] The claimant explained that she has always been attracted to men and women alike, and this is how she was born. It is natural for her to feel attracted to both men and women. She stated she will feel suffocated if her ability to express herself sexually is taken away from her. When she started her relationship with [XXX], she felt completely satisfied in that relationship, which is why it has lasted this long and is still going strong.

[16] The panel canvassed her about her relationship with her husband. The claimant explained that she was born into a Muslim family and that her father is a very religious person. When her parents discovered her bisexuality, they forced her to marry her husband, even though she did not want to marry him. Her father then locked her up in a garage for a week until the claimant relented and agreed to marry her husband. However, she has never felt attracted to him because he has been abusing her since they got married. When her husband discovered her in an intimate position with [XXX] on [XXX], 2017, he beat her up and took her to the village elders, who then put her in jail after registering a case of homosexuality against her. She has been separated from him since then and has no plans to ever live with him again because he is a heartless man and is still looking for her so that he could put her in jail. When asked how she knows that her husband is still looking for her, the claimant stated that her sister gives her updates whenever she talks to her. The claimant stated that the police is also on the lookout for her since there is a case pending against her and because she escaped from jail.

[17] The claimant was asked where she had lived after escaping jail in Uganda. She stated that she went into hiding in different villages and towns with the help of her sister and her partner, [XXX]. They were the ones who would provide her with everything she needed while in hiding, including taking care of her children. [XXX] and her sister arranged for a travel agent to help her escape from Uganda.

[18] The claimant has provided documentary evidence to support her claim. The panel has no reason to doubt the genuineness of these documents, which form Exhibit 4, and accepts them as genuine. In doing so, the panel finds that this evidence corroborates her claim as a bisexual woman. The documentary evidence contains the following:

Letter of support from claimant’s former roommate at the university;
Letter of support from claimant’s brother-in-law, who is a [XXX] and helped her escape from prison;
Affidavit from claimant’s sister, affirming the events faced by the claimant;
Affidavit from [XXX], affirming her relationship with the claimant and the events faced by them in Uganda;
Claimant’s marriage certificate;
Claimant’s proof of enrollment at the [XXX] University;
Letter of support from Centre for Newcomers’ in Canada, supporting the claimant as a member of the LGBTQ community;
Letter from [XXX] Church in Canada affirming claimant’s sexual orientation;
Claimant’s pictures with [XXX]; and
Claimant’s text messages with [XXX].

[19] Based on the claimant’s straight-forward and frank testimony, as well as the corroborative evidence discussed above, the panel finds her to be a credible witness and accepts her allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, the panel accepts that she is a bisexual woman, that the police arrested her on [XXX], 2017 following the complaint by her husband to the village elders regarding her sexual activities; that the claimant’s brother-in-law helped her escape from jail; that she went into hiding with the help of [XXX] and her sister, and that the police and her husband are now looking for her. The panel also accepts that the claimant has a subjective fear of returning to Uganda on account of her sexual orientation.

Well-founded fear of persecution and Risk of harm

[20] The persecution that the claimant faces has a nexus to one of the five Convention grounds, that of membership in a particular social group, i.e. her sexual orientation as a bisexual, and therefore this claim is assessed under section 96 of the Act.

[21] The panel finds that the claimant has established that she has a well-founded fear of persecution due to her bisexuality, which is supported by objective evidence. The documentary evidence shows a high level of societal homophobia in Uganda and also that same-sex relationships are illegal in that country. The country documentation is consistent with the claimant’s past experiences and confirms her forward-looking fear of returning to Uganda as discussed below.

The objective evidence shows that homosexuality is a crime in Uganda.^[4] Section 145 and 146 of the Ugandan Penal Code specify that any person acting against the order of nature and committing unnatural offences shall be imprisoned from seven years to life. Section 148 regarding indecent practices states that:

[22] Any person who, whether in public or in private, commits any act of gross indecency with another person or procures another person to commit any act of gross indecency with him or her or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or in private, commits an offence and is liable to imprisonment for seven years.^[5]

[23] Uganda’s openly hostile rhetoric has aggravated discrimination and violence against members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. Several cases of people subjected to forced anal examinations to prove engagement in proscribed

consensual same-sex acts have been documented.^[6]

Statements by Ugandan officials have further fueled the sentiment of the public and authorities against the LGBTI community.^[7]

Uganda’s President, Yoweri Museveni, 2017: “Africans here, we know a few people who are ‘rumoured’ to be homosexuals, even in history we had some few being rumoured, but you cannot stand up here and say “I am a homosexual.” People will not like it. So whenever we talk to our partners in other parts of the world [we say]: “please that’s a private matter, you leave it”. But no, they want to impose it on you… that I should stand up and say, ‘oh yeah, homosexuals, oh yeah.’”

Minister of Health for General Duties Sarah Opendi, 2017: “Homosexuality remains an illegally activity, according to our laws and, therefore […] we cannot be seen doing the opposite […] the Global Fund money is supposed to help in the fight against malaria and other diseases not buying lubricants for homosexuals.”

Minister of Ethics and Integrity, Simon Lokodo, 2017 (variously): “Homosexuality is not allowed and completely unacceptable in Uganda. […] We don’t and can’t allow it. LGBT activities are already banned and criminalised in this country. So popularising it is only committing a crime”. “It’s true I ordered the police to stop and shut down all the gay pride events. No gay gathering and promotion can be allowed in Uganda. We can’t tolerate it at all. […] We know they are trying to recroit and promote homosexuality secretly. But it’s worse to attempt to stand and exhibit it in public arena. This is totally unacceptable. Never in Uganda.”^[8]

Amnesty International, in its Human Rights Review of 2019 in Uganda noted that:

In May, police acting on orders from the Minister of Ethics and Integrity raided and stopped an event organized by NGOs, Chapter Four Uganda and Sexual Minorities Uganda, to commemorate the International Day Against Homophobia and Transphobia. Between July and October four LGBTI people were killed in the wake of heightened anti-LGBTI sentiments being expressed by political leaders. Those killed included Brian Wassa, a gay paralegal who died on 5 October of a brain hemorrhage as a result of head injuries from an attack by unknown assailants the previous day at his home in Jinja town in the Eastern region. Uganda investigative authorities have not publicly commented on the killing. A transwoman from Gomba district, and a gay man from Kayunga district (both in the Central region) were also killed in attacks by unidentified assailants. In October, the police arrested 16 LGBTI activists and subjected them to forced anal examinations after the Ethics and Integrity Minister announced plans to introduce the death penalty for consensual same-sex sexual activity which is already punishable by life imprisonment. In November, the police charged 67 out of 125 people, arrested at a bar popular with LGBTI people, with “common nuisance”, punishable by imprisonment of up to one year. Their court case was ongoing at the end of the year, and they were required to report to the police each week for their bail conditions to be reviewed.^[9]

[24] Human Rights Awareness and Promotion Forum (HRAPF),^[10] in its report on human rights abuses and violations against the LGBTI community, notes that:

Uganda’s laws and policies do not specifically protect LGBT persons against violations within the criminal justice system,
There is a trend towards human rights-based detention and imprisonment practices embraced by both the police and the prisons,
LGBT persons in police detention suffer violations attributable mainly to their sexual orientation, and
LGBT persons in prison face discrimination and abuse of their dignity.

[25] Therefore, based on all the evidence before it, the panel finds that the claimant faces more than a mere possibility of persecution at the hands of state and non-state actors in Uganda by way of her membership in a particular social group, namely a bisexual person. Her fears of persecution in her country are indeed well-founded.

State protection and Internal flight alternative (IFA)

[26] The panel finds that state protection would not be reasonably forthcoming to the claimant as one of the agents of persecution is the state. The laws prohibiting homosexuality apply throughout the country and so do the laws that fail to protect homosexuals from discrimination and persecution. Therefore, the panel finds that the presumption of state protection has been rebutted.

[27] The country condition documents indicate that the high level of discrimination against homosexuals exists throughout the country. As such, the panel finds that there is no viable IFA available to the claimant in this case in Uganda

CONCLUSION

[28] Based on the analysis above, the panel concludes that the claimant is a Convention refugee as per section 96 of the Act. Accordingly, her claim is accepted.

^[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

^[2] Exhibit 2.

^[3] Exhibit 4.

^[4] Exhibit 3, National Documentation Package (NDP), Uganda, September 30, 2020, Item 6.2.

^[5] Exhibit 3, NDP, Item 6.2.

^[6] Ibid.

^[7] Ibid.

^[8] Ibid.

^[9] Exhibit 3, NDP, Item 2.2.

^[10] Exhibit 3, NDP, Item 6.5.