Category: Uganda

2020 RLLR 59

Citation: 2020 RLLR 59
Tribunal: Refugee Protection Division
Date of Decision: October 1, 2020
Panel: Kevin Wiener
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Uganda
RPD Number: TB8-20429
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000001-000003

DECISION

[1] MEMBER: This is the decision in the claim for refugee protection of [XXX]. Sir, you are claiming to be a citizen of Uganda and your claiming refugee protection in Canada pursuant to sub-Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] I considered your testimony today and I’ve considered the other evidence you provided, and I am ready to render a decision, I’ve decided to accept your claim. In making my decision I have considered the Chairpersons Guideline on persons with diverse sexual orientation and gender identity and expression. As I said, my determination today is that you are a Convention refugee on the grounds of your sexual orientation, that is that you are a gay male.

[3] In your claim you’ve alleged the following, that you are a citizen of Uganda, and that you are being stalked by the Ugandan police after your partner’ s wife discovered the two of you together. You allege that if you return to Uganda you will face arrest and social persecution because of your sexual orientation.

[4] Now there is a number of things I have to look at in your claim but first there’s your identity, who you are and what your country you’re a citizen of. In this case I find your identity has been established, your passport is seized by the Canada Border Services Agency and a copy of that passport was provided into evidence. In addition, you’ve also provided other documents, including your national ID card and your birth certificate. I find these documents establish on the balance of probabilities who you are and that you are a citizen of Uganda.

[5] The next issue in a claim is Nexus, that is whether the harm you fear falls into one of the five categories under refugee Convention. In this case the applicable category is one called particular social group and that is because you are a gay man and that something integral to your identity and it’s out of your control. That makes you a member of a particular social group and therefore any persecution you may face because of your membership in that group falls under Section 96 of the Act.

[6] The next issue is credibility. In any claim I have to determine whether the person making the claim is telling the truth. In this case I found that you are a credible witness and I believe what was in your oral testimony and your Basis of Claim form. Now in any claim when a claimant swears they’re telling the truth that starts a presumption that they are telling the truth and that can only be rebutted if there are inconsistencies in their testimony or other things that make me believe that what they are saying is not the truth. In this case I have no reason to believe that you are telling me anything other than the truth, your testimony today was consistent with what was in the Basis of your Claim. But I also find that you were able to go into a number of details outside of your Basis of Claim, including about your relationship with [XXX], your relationship with [XXX] what things were like at school. I found particularly compelling your testimony about your conversation with your mother at the hospital and how she said that you had brought shame to her and how that made you feel. You know that was the detail in your Basis of Claim, but you were able to answer that question very spontaneously, and I found that your testimony in that regard was credible. There was only one significant inconsistency in the hearing today and that was as I mentioned in the hearing when you were interviewed by Dr. [XXX], you gave dates for when you first realized you were gay and your first experience of sexual-, of consensual sex that were different than the dates in your testimony and your Basis of Claim. When I asked you about that you said that, that interview was shortly after you came to Canada and you were under a lot of stress and that’s why you got that answer wrong when that interview with Mr-, Dr. [XXX]. However, I note your testimony in this area was consistent between your Basis of Claim and your testimony today and ultimately, I don ‘t think this one inconsistency is signif-, is sufficient to show that you are not a credible witness. So, I find that presumption that you’re telling the truth is still in place.

[7] Your testimony was not the only evidence you provided, you also provided supporting affidavits from three individuals who confirmed various parts of your testimony. I have no credibility concerns about those affidavits, and I find they further prove the same allegations. So ultimately, I accept on the balance of probabilities what you testified to, that you are a gay man and that you are being sought by the Ugandan police and that you fear returning to Uganda because of those facts.

[8] I also have to determine whether your claim is objectively well-founded. That is there’s objective evidence showing that you are actually at risk in Uganda and there’s a National Documentation Package that forms parts of every decision and that package has documents that are very clear that sexual minorities, including gay men face severe persecution in Uganda. For example, the United States Department of State has issued a human rights report which is Item 2.1 of the National Documentation Package. That report notes that homosexuality is illegal in Uganda and that both society and the authorities routinely perpetrate violence against the LGBT community. I also draw on Item 6.1 which is a report from ORAM, and it talks about the anti-homosexuality laws in Uganda, that while the more restricted anti-homosexuality law was struck down by the courts, homosexuality remains illegal under Uganda’s Penal Code. But the fact that less than a decade ago Uganda was putting in place harsher penalties against homosexuality is to me a strong signal that homosexuality remains widely unacceptable in that country and subject to persecution. That report from ORAM says that no one has yet been convicted for violating the law against homosexuality but that police frequently charge people for violating it. And for me just the fact that you may be arrested and charged for violating this law is itself a form of persecution even if you don’t face a risk of conviction. ln addition, I’ve accepted your personal testimony that you are personally being sought by the Ugandan police and that you personally have been arrested by the Ugandan police. So, when looking at this I have to look forward at your risk if returned to Uganda and the question is, is there a serious possibility that you will face persecution if you return to Uganda. And because I’ve accepted that you are gay and that you were sought by the police, I do find that there is a serious possibility that you will face persecution in Uganda and the reason for that persecution is your sexual orientation.

[9] There’s two other things that we have to look at in the claim, the first is state protection, whether the government can protect you from any harm. That doesn’t apply to this case because the agent of persecution is itself the State, because of that no state protection can be available to you. The next question is what’s called an internal flight alternative. In order to make a refugee claim, you either have to show that you face persecution everywhere in Uganda or if you face persecution only in some parts that it would be unreasonable to move somewhere else in Uganda. In this case again, the agent of persecution is the government of Uganda, they control the entire country and therefore I find you face a serious possibility of persecution everywhere in Uganda.

[10] So, in conclusion, when I look at the totality of the evidence, your testimony, the documents in the National Documentation Package, I find that you face a serious possibility of persecution everywhere in Uganda and the State cannot protect you from that persecution; therefore you meet the definition of a Convention refugee under Section 96 of the Immigration and Refugee Protection Act. I therefore accept your claim today sir.

———- REASONS CONCLUDED ———-

All Countries Uganda

2020 RLLR 34

Citation: 2020 RLLR 34
Tribunal: Refugee Protection Division
Date of Decision: January 16, 2020 (date of transcription)
Panel: N/A
Counsel for the Claimant(s): N/A
Country: Uganda
RPD Number: MB8-21947
ATIP Number: A-2021-00655
ATIP Pages: 000024-000027

[1] These are the reasons for the decision in the claim of Madam [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. I note that prior to the hearing, the Board has granted Counsel’s request to designate the claimant as a vulnerable person according to Chairperson’s guideline concerning procedures with respect to vulnerable persons appearing before the Immigration and Refugee Board. As per request of the Counsel, the Board has allowed the following procedure accommodations to ensure that the claimant was not disadvantaged in presenting her case. A female Member Panel, a small hearing room, and the taking of breaks according to the needs of the claimant.

ALLEGATIONS

[2] The claimant alleges that she fears persecution by the government because of her political opinion and because of her sexual orientation as a lesbian. She believes that if she returns to Uganda, she will be imprisoned and seriously harmed by the government and there is no safe place for her to return to in Uganda.

DETERMINATION

[3] Having considered the totality of the evidence, I find the claimant to be a “Convention refugee” under Section 96 on the grounds of her political opinion.

ANALYSIS

[4] The determinative issue in this claim is credibility.

IDENTITY

[5] Based on a certified true copy of the claim… claimant’s Ugandan passport and her national identity card, the original of which was seized by the CBSA, I’m satisfied with the claimant’s nationality and personal identity.

CREDIBILITY

[6] In assessing the claimant’s credibility, I have taken into consideration her medical report from the [XXX] in the United States, and her psychiatric reports from the [XXX] in Montreal, and a letter from a psychotherapist. I note that she was diagnosed with [XXX] by Dr. [XXX] (phonetic) of the [XXX]. With respect to her political activism, I find that claimant was capable of giving a spontaneous and straightforward testimony. She answered all the questions posed to her without hesitation. She was able to elaborate on her motivation, involvement, and aspirations in human rights issues and politics in Uganda. She provided a detailed account of the alleged incidents that she and her family encountered at the hands of the State agents because of her anti-government views and opinions. There were no major inconsistencies, discrepancies or omissions between the claimant’s testimony, her previous declarations and the documentary evidence she provided in support of her alleged incident of persecution. In particular, the police reports and the medical certificate of her son corroborate her allegations of being targeted by the State. I have no reasons to doubt the authenticity of these documents.

[7] With respect to the claimant’s subjective fear, I note that the claimant was in the United States from [XXX] to [XXX] 2014, during which time she did not claim refugee status. As to explain why, she testified that her children were in Uganda then, under the care of her elderly mother. And, there had been no serious incident that occurred to her yet. She missed her children and she wanted to be reunited with them, taking care of them, with the hope that things would turn better. She therefore did not claim asylum in the States and returned to Uganda. I find her explanations not unreasonable. The claimant went to the United States again at the end of [XXX] 2018 and stayed there for three days before coming to Canada to seek protection. She was asked why she did not claim refugee status in the States on this occasion. She explained that her plan was to come to Canada because her husband was here and she believed this is a good country where she can have all the freedom. Given the short stay she was in the United States, the Panel does not infer her failure to claim refugee status in the U.S. to a lack of subjective fear. For both reasons, I conclude that the claimant has established her subjective fear of persecution by reason of political opinion.

OBJECTIVE BASIS

[8] I further examined whether there is an objective base to the claimant’s subjective fear of persecution. I note that the claimant’s allegations of the treatment of political opponents by the ruling party are supported by the following objective documentary evidence in the National Documentation Package for Uganda. The Amnesty International report 2017, 2018, states that rights of freedom of expression, association and assembly were restricted. Individuals in Uganda who express political views that do not align with the government in power face a risk of persecution. The Human Right Watch 2019 states that violation of rights to freedom of association, expression and assembly persisted, as security forces beat, and at times torture and arbitrarily detain protestors, journalists and opposition members. 33 people, including 6 parliamentarians, were arrested during the bi-election campaigns in Arua. They faced treason charges and alleged torture by the security forces, police and soldiers beat and detain journalist reporting in Arua and at ensuing protests. The United States Department of State country report on human rights practices for 2018 notes that significant h7uman rights issues were observed, including unlawful killings and torture by security forces, harsh prison conditions, arbitrary detention, restrictions on freedom of press, expression, assembly, and political participation as well as official corruption. The same report also notes that the Ugandan government was reluctant to investigate, prosecute or punish officials who committed human rights violations whether in the security services or elsewhere in the government and impunity was a problem. The police arrest and detain members of the opposition. Given all of the above objective country conditions, I find there is an objective basis to the claimant’s subjective fear.

STATE PROTECTION

[9] I have considered whether the claimant would have State protection should she return to Uganda. In this case, given the agent of persecution is the State, which acts with impunity as it transpires in the documentary evidence I just referred to, I find that adequate State protection would not be reasonably forthcoming to the claimant in her circumstances. Hence, the presumption of State protection was rebutted.

INTERNAL FLIGHT ALTERNATIVE

[10] I have also considered whether a viable internal flight alternative exists for the claimant. The documentary evidence indicates that the State authorities operate similarly throughout Uganda, and that the State is un control of all its territory. Therefore, I do not find that the claimant has a viable alternative of internal flight anywhere in Uganda.

CONCLUSION

[11] Based on the foregoing analysis, I find that the claimant has established there is a reasonable chance or serious possibility that she would be persecuted for a Convention ground, that is by reason of political opinion, should she return to Uganda. I therefore accept her claim.

All Countries Uganda

2019 RLLR 145

Citation: 2019 RLLR 145
Tribunal: Refugee Protection Division
Date of Decision: January 8, 2019
Panel: S. Charow
Counsel for the Claimant(s): Jonathan E Fedder
Country: Uganda
RPD Number: TB8-04402
ATIP Number: A-2021-00256
ATIP Pages: 0000164-000167

DECISION

[1] MEMBER: This is the decision for [XXX] File TB8-04402. I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. In making this decision, I have considered the guidelines for sexual orientation.

[2] 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.

[3] I find that you are a Convention refugee for the following reasons.

[4] The allegations of your claim can be found in your Basis of Claim Form at Exhibit 2. In short, you allege persecution as a member of a particular social group, namely that you are in danger of being harmed because of your identity as a gay Ugandan man as same-sex sexual activity has been criminalised in Uganda.

[5] You fear both the police and your community as you have alleged that you have been previously sought by the police after being attacked by a homophobic mob.

[6] Your personal identity as a citizen of Uganda has been established by your Ugandan passport. I therefore find on a balance of probabilities your identity and country of reference have been established.

[7] In terms of your general credibility, I have found you to be a very credible witness, and I therefore accept what you have alleged in your oral testimony and in your Basis of Claim form. You testified in a straightforward manner about your fears without any embellishment, and there were no inconsistencies that went to the core of the claim that were not explained.

[8] Your testimony was spontaneous including being able to provide details about how you first began to understand your sexual orientation as a youth. You were able to give specific detailed testimony about your emotions and the difficulties you face keeping your feelings a secret after seeing homophobic reactions from the community, your school, your church and your family.

[9] You gave extremely detailed testimony about your current partner [XXX] (PH), including how the relationship developed, what attracted you to [XXX] (PH), and how you were able to keep your relationship a secret as a whole. Your testimony regarding how your sexual orientation was exposed was also descriptive, consistent and in line with the documentary evidence you provided.

[10] As well today, you showed me that you have been in ongoing contact with [XXX] (PH) since you came to Canada, and you were able to show me your communication with him after he had fled to a remote village in Uganda. You showed me your messages on WhatsApp on your phone dating back to February 2018 shortly after you had left Uganda.

[11] When reading through the months and months and months worth of messages, I noted that you both refer to each other with terms of endearment and that the messages were varied, plentiful and continuous up to this time. I saw that he had wished you luck on your hearing today.

[12] I find that the messages that you showed me were authentic as I saw them on your phone, and I saw how far back they dated and overall consistent with the nature of the relationship that you have alleged.

[13] As well in support of your claim, you provided documentary evidence. I note a medical assessment completed here in Canada, which states that you have injuries consistent with the assault that you had alleged in Uganda. I noted a detailed letter from your same-sex partner, again, very detailed, consistent with your allegations and very much in line with the nature of the relationship that you alleged.

[14] I noticed that you provided photographs of you and your same-sex partner as well as a letter from your uncle, the person who helped you escape Uganda and who provided support for you while you were in hiding. As well, I see that you have provided confirmation of money transfers showing that you have been sending money to your same-sex partner in Uganda. These documents can be found in Exhibit 6 through 8.

[15] I am therefore satisfied that the events have occurred as alleged and that you would face persecution at the hands of either the Ugandan government or your community should you return to Uganda. I find that you have established your subjective fear.

[16] I find that there is a link between what you fear and one of the five Convention grounds, specifically that as a gay man you are a member of a particular social group because of your sexual orientation. Therefore, your claim has been assessed under Section 96 of the Immigration and Refugee Protection Act.

[17] I further find that you have an objective basis for your fear because of the documented conditions for Uganda as per the evidence in Exhibit 3, which is the National Documentation Package for Uganda. I specifically note Item 6.1 which states that Ugandan law criminalises same sex sexual acts. The law in Uganda further restricts the access of sexually nonconforming individuals to protections against discrimination that are available to other Ugandans.

[18] I also note that there is further criminalisation of same sex activity under the Penal Code which prohibits unnatural offences and acts of gross indecency, and that homosexuality is rejected by most Ugandans on the basis of tradition, culture, religion and moral values. Many in Uganda perceive homosexuality as “un-African and un-Christian” or inspired by western practices, and it is also presented in connection to wider threats to “authentic” African values and traditions.

[19] Therefore, in considering all of this information, I find that your subjective fear has an objective basis. I find that you have a well-founded fear of persecution due to your sexual orientation.

[20] I further find that Stare protection would not be reasonably forthcoming in your case as per the evidence already discussed. As per Item 6.1 of the National Documentation Package at Exhibit 3, samesex sexual activities are criminalised. The same Item also notes that many people who identify as a sexual minority are often unable to receive police protection from abuse by non-State actors for fear of being arrested or ignored or further abused. As such. I find that there is clear and convincing evidence that State protection would not be available to you nor would it be reasonable for you to seek such protection.

[21] Given the conditions discussed, I further find that there would be a serious possibility of persecution anywhere in Uganda as homosexuality is criminalised throughout the country and societal attitudes as discussed are consistently homophobic throughout the country.

[22] As the test for an internal flight alternative fails on the first prong, I find that there is no viable internal flight alternative for you anywhere in Uganda.

[23] Based on the totality of the evidence, I find the claimant to be a Convention refugee. Your claim is therefore accepted.

[24] So, this will conclude today’s hearing. I would like to thank everyone for their participation.

[25] Thank you, sir. Thank you counsel.

[26] COUNSEL: Thank you madam member.

—REASONS CONCLUDED—

All Countries Uganda

2019 RLLR 129

Citation: 2019 RLLR 129
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2019
Panel: Ellaree Metz
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Uganda
RPD Number: TB8-15381
Associated RPD Number(s): TB8-17285
ATIP Number: A-2021-00256
ATIP Pages: 000067-000071

DECISION

[1] MEMBER: These are decisions in the claims of TB8-15381, [XXX] she’s the principal claimant joined with that of her partner [XXX]. They’re citizens of Uganda and are claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refu-, Refugee Protection Act.

[2] Essentially both the counsel and the Board member has agreed that this is a Section 96 claim. The essence of their allegations or their substantive allegations are contained in Exhibits, in their Basis of Claim forms found starting Exhibit 2 and 3. And essentially, for the principal claimant, she alleges that she is a sexual minority, she’s bisexual, and that she’s facing persecution in Uganda due to her sexual orientation. The associate claimant who is her partner also claims that she is of a sexual minority, that is specifically, that she is lesbian and is facing, also facing persecution due to her sexual orientation.

[3] With respect to identity, the associate claimant’s identity as a national of Uganda is established by her testimony and supporting documentation filed. I note that she had a certified copy of her true Ugandan passport, that is located at Exhibit 1. With respect to the principal claimants identity she also had a Ugandan passport located at Exhibit 1. Her testimony in chief before the Panel gave rise to concerns about her identity. While the information contained in her visa application to Canada, some of it is incorrect or manufactured and further her testimony was inconsistent regarding material aspects of her identity. Including her inability to properly identify her siblings, the inconsistency regarding the number of brothers and sisters she had, and further her inability to identify her sib-, sibling’s as well as her parents date of births. That coupled with concerns that were raised about what she may or may not have said to the immigration officials regarding whom or who she was traveling with, as is in her story for the TRV or the Temporary Resident Visa application gave the Panel pause. But I did take the time to look at all the evidence per say, and I will get to some of this later. And that her Ugandan passport is not considered to be fraudulent, nothing on the face of it is considered to be fraudulent at least. As examined by this Panel, also looked at documentation that she had with respect to support letters, specifically from the mother, from her mother that was accompanied by the mother’s, or at least a copy of the mother’s national identity card. As such on a balance of probabilities I find that she has met the identity portion of the hearing. I accept her identity that she is who she said she is, and she is a citizen of Uganda.

[4] The credibility portion, a claimants sworn testimony is presumed truthful unless there are reasons to doubt the truthfulness of their allegation, and I’m cognizant of the many difficulties may arise by claimant in establishing a case. Including nervousness, cultural factors as well as for instance the use of an interpre-, interpreter. As these claims are related to sexual orientation and gender, I have considered the Chairpersons Guidelines, specifically I’ve considered, Chairpersons Guidelines on the SOGIE Guidelines, those are claims that involve, involving Sexual Orientation and Gender Identity and Expression. As well as I’ve considered the Chairperson’s Guideline 4, with respect to Women Refugee Claimants Fearing Gender Related Persecution. The Guidelines are used to assist or to help to assess the circumstances of claims and to understand and apply added sensitivities necessary, and awareness of circumstances that may affect findings relating to facts and findings of mix facts and law.

[5] While I did have-, while there were credibility concerns as it related to the principal claimants, on a balance of probabilities I have determined that the claimants are Convention refugees pursuant to Section 96 on the grounds of their membership in a particular social group, that being that their sexual minorities in Uganda. For the principal claimant, as a bisexual, for the associate claimant her partner as a, as a lesbian woman, as such I will, I am accepting both claims for refugee protection.

[6] The principal claimant along with her same-sex partner, here the associate claimant, they both testified here today. The majority of the testimony came from the principal claimant, they testified today and they also testified in the previous hearing date of September the 5th 2019. The principal claimant departed Uganda on [XXX] 2018 and arrived in Canada the next day. She did not make an application at the airport but later made an in-land claim for protection on June the 6th of 2018. The associate claimant, her partner was initially denied a visa, but later arrived in Canada on [XXX] 2018, and subsequently also made a claim for refugee protection.

[7] During the hearing date of September, the 5^th 2019, issues arose regarding the principal claimants inability to confirm or to properly identify various material aspects of her identity, including or associated with her identity as already indicated. Including particulars of her brothers and sisters, as well as particulars of her parents. Further, there was inconsistency and confusion with regards to her testimony pertaining to her journey to Canada. She re-, she testified upon arrival to Canada, she indicated to immigration officials that her aunt and uncle were traveling separately for the conference and this was the cover story used in their temp-, in her Temporary Resident Visa application. She also testified that she could not recall what she said with respect to the alleged foreperson-, to the alleged foreperson who was supposed to be with traveling her. That’s when I looked at the GCMS notes on file located at Exhibit 1. It indicated that the principal claimant was traveling, or was to be traveling with her mother and father and her mother’s sister. That would, family was not present when they arrived in Canada or present at the immigration official when they requested them, but that certainly would have cause immigration officials to question her further as to the deviation between her TRV application and what she was saying to them that day.

[8] On September 11^th 2019, a letter was sent to the Minister, alerting to them, to the possibilities that the claimants may be misrepresenting or withholding material facts pursuant to Section 27(3)(a) or 27(3)(c) or (3)(d) of the Act. The Minister did not respond or did not intervene, quite frankly the Minister has probably not gotten to the letter as of current date, so it is always open to the Minister after they review these matters to intervene on it afterwards or to challenge the Board’s decision. But based on the evidence that I’ve heard, I’ve accepted the claims.

[9] Counsel invited me to consider the evidence in totality and to put much weight on the psychological report of Dr. XXXX, that is located at Exhibit 5. As I noted to counsel during his submissions, the report is dated February the 3^rd 2019-,

[10] Member: Are you following along Mam?

[11] Claimant:

[12] Member: Okay so they don’t need you to?

[13] Interpreter: Yes

[14] Member: Okay, thank you Mr. interpreter.

[15] The report is dated February the-, February the 3^rd 2019, however in the report it indicates that the psychologist saw the principal claimant on January the 20^th 2018, which we know could not have been the case, as the principal claimant departed Uganda on [XXX] 2018. The principal claimant during her testimony here today was not able to offer much assistance on this matter as she could not recall when she saw the s-, psychologist, only that she had seen him once. That part at least corresponds with what the psychologist report indicated. So, on a whole 1-, did attach weight to the report, if not to the actual date that the claimant was seen, I did give the over-, the rep-, the overall report weight. It was also significant to the Panel, that the claimant is currently undergoing mental health treatment with her family physician and is on anti-depressant medication. I note there was no corroborative evidence beyond her testimony that put before the board, given the circumstances this will be a matter that there should’ve been medical documentation that was sent to the Board to correspond to-, so the Board can consider everything in totality. But going back to the report from Dr. [XXX]. It indicates that the principal claimant is suffering from [XXX], it requires mental health treatment. Further that she gets nervous and maybe inhib-, maybe inhibited during the hearing process. And the psychologist noted issues of concentration and recollection concerns that was nexus or due to her mental health state. In light of that report and in light of the weight that the Panel had given to the report, I did not make a fatal assessment with respect to her credibility, as those were alleviated by some of the concerns that were raised in the psychological report.

[16] Then I looked at documentary evidence with support-, with respect to the overall claims. There was a letter from the principal claimant’s mother, regarding the gang rape, and that letter was supported by the mother’s national identity card from Uganda or copy of. There was a letter from the principal claimant’s friend or associate, [XXX]-, first name is-, last name is [XXX] first name is [XXX], regarding his involvement with the principal claimant and her work with assisting sexual minorities in Uganda. There’s also statutory declaration from [XXX], a personal friend of the principal claimant, indicating that she had allowed the principal claimant to seek refuge in her home in 20-, in January of 2018. So, in totality when I reviewed the file, I found that their allegations were supported by the evidence that has been filed and by the country documentation, which indicates that sexual and gender-based viol-, violence is widespread in Uganda.

[17] According to the National Documentation Package for the country it indicates that same-sex activities are criminalized under Uganda’s Penal Code, and as such they’re deemed to be unnatural offences or acts of gross indecency. There’s also a high level of societal homophobia in Uganda, homosexuality is rejected by most Ugandans on the basis of tradition and culture, religion and moral values. Many in the country perceive homosexuality as un-African and un-Christian. There’s also reports of numerous examples of people suspected of engaging in same-sex activities who has been victims of mob aggressions, public aggressions, and have got no state protection. Thus, in light of the documentary evidence with respect to the treatment of people suspected to engage in same-sex activities in Uganda, as well as gender violence, I find that the fears expressed by the claimants have an objective basis.

[18] The objective evidence indicate-, demonstrate that there’s no state protection available in Uganda for sexual minorities who are being threatened. It also indicates that sexual minorities have been subject to societal harassment, discrimination, intimidation, threats to their well-being, as well as loss of accommodation and jobs. They’ve also been denied access to health services. Consensual same-sex conduct is illegal in the country and the law provides for penalty of up to life, of up to a lifetime imprisonment. Considering all of this objective evidence, I find that it’s objectively unreasonable to expect the claimants to seek protection from the authorities in Uganda. Therefore, I find that there is no adequate state protection available for the claimants in Uganda based on their personal circumstances.

[19] As I’ve found or accepted the claimants’ identities of sexual mi-, as sexual minorities in Uganda, I find that they would face a risk of being persecuted anywhere in that country. Thus, there’s no viable internal flight alternative for them.

[20] So as such, I have accepted their claims for refugee protection pursuant to Section 96 of the Act.

———- REASONS CONCLUDED ———-

All Countries Uganda

2019 RLLR 106

Citation: 2019 RLLR 106
Tribunal: Refugee Protection Division
Date of Decision: October 1, 2019
Panel: Diane Hitayezu-Fall
Counsel for the Claimant(s): Micheal F Loebach
Country: Uganda
RPD Number: TB8-18931
ATIP Number: A-2020-01459
ATIP Pages: 000161-000166

REASONS FOR DECISION

[1] [XXX] (the claimant) claims to be a citizen of Uganda, and seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)¹.

ALLEGATIONS

[2] The details of the claimant’s allegations are set out in his Basis of Claim (BOC) form.² In short, the claimant alleges persecution based on his political opinion and membership in the Forum for Democratic Change (FDC); an opposition political party in Uganda.

[3] He alleges that he was detained three times due to his political activities. He was released with conditions after each arrest, and one of the conditions was to report back to the police. He decided to flee Uganda after the third detention in [XXX] 2017, when he learned that he had been charged for inciting violence.

[4] He arrived in Canada on [XXX] 2018 from the United States where he had a pending asylum claim.

[5] The claimant alleges that the Ugandan government is still looking for him. He fears his life would be at risk, if he were to return to Uganda, as he still opposes the National Resistance Movement’s programs and its ways of ruling the country.

DETERMINATION

[6] Having considered the totality of the evidence, the panel finds that the claimant is a Convention refugee as he has established a serious possibility of persecution in Uganda, based on a Convention ground, political opinion.

ANALYSIS

Identity

[7] The panel is satisfied with the claimant’s personal identity and status as a citizen of Uganda, on a balance of probabilities.

[8] His identity was established based on his oral testimony, a certified copy of his Ugandan passport (a copy of which is on file) seen by a border services officer and other documents from Uganda he provided, which include a birth certificate, academic documents and his marriage certificate.³

Credibility and subjective fear

[9] The claimant’s oral testimony regarding his motives to join the FDC party, his activities and his political opinion was detailed and credible. It was supported by documents that the panel assessed and found trustworthy on a balance of probabilities.⁴ His knowledge of the Ugandan political sphere was commensurate to his alleged involvement in the FDC.

[10] His testimony included his motives to join the FDC, his role within the FDC, the events that made him leave Uganda, and his current fears.

[11] Despite this credible oral testimony, the panel noticed that the claimant submitted questionable police documents.⁵ These documents contain spelling errors and at least one cites the wrong section of the applicable law.⁶ The claimant did not offer any explanation when he was invited to comment on the flaws noted; he simply stated that the release on bond documents were handed to him by the police, and the other documents were given to his lawyer or his wife. The flaws identified on these police documents were not explained to the panel’s satisfaction. The panel finds that they are non-genuine, on a balance of probabilities and were submitted to embellish this claim.

[12] These non-genuine documents were tendered to corroborate the claimant’s allegations that he had been detained, then released on bonds, was required to report back to the police, and that several warrants to arrest were issued against him.

[13] The panel considered the other evidence on file regarding these allegations and found that the negative impact of the submission of these documents that the panel assessed and found non-genuine on a balance of probabilities was overcome by the claimant’s credible oral testimony and other credible evidence tendered to support the alleged dealings with the police. This other evidence included the claimant’s testimony, found to be credible, and a number of letters and affidavits which included an affidavit from the FDC lawyer who handled the claimant’s detention cases and letters from FDC leaders and that

[14] As the claimant arrived in Canada from the US where he had a pending asylum claim, the panel had to assess if leaving the US and abandoning his claim was a sign of lack of subjective fear.

[15] The claimant has provided a number of documents related to his US asylum claim, which indicate that the assessment of his claim was almost completed when he left the US.⁷ He had received a letter inviting him to clarify some elements of his claim. He explained that having heard about the unfavourable US immigration policies, he got scared to be sent back to Uganda and decided to come to Canada.

[16] Taking into consideration the claimant’s particular circumstances and his explanation for abandoning his claim in the US and based on the understanding of the panel of the current US administration’s attitude and treatment of immigrants and asylum seekers, the panel will not draw any negative inference in regards to the claimant’s abandonment of his US claim.

[17] Having assessed the entire evidence on record, the panel finds that, based on the oral testimony found credible and the documentary evidence found reliable, the claimant has established that he is a member of the opposition and that he left Uganda because of his political opinions. Therefore, the panel concludes that he has established a subjective fear as a person who holds opinions that do not align with the ruling party.

[18] The panel finds that there is a connection between the fear alleged by the claimant and one of the Convention grounds, namely political opinion.

Objective Basis

[19] The claimant’s allegations are supported by the objective documentary evidence contained in the National Documentation Package (NDP) for Uganda.⁸ This objective documentary evidence reports that people in the claimant’s circumstances, individuals in Uganda who express political views that do not align with the government in power, face persecution. The claimant fears to be arrested if he returns to Uganda. He has charges pending in Uganda, stemming from his past political activities with the FDC when he opposed the Government and the National Resistance Movement (NRM) policies. The objective evidence validates his fear. There is information that Ugandan authorities cite laws protecting national security to restrict criticism of government policies.⁹ The FDC is reported to be the strongest force in the opposition and represents the biggest challenge to President Museveni.

[20] The United States State Department’s Country Report on Human Rights Practices for 2018 included in the NDP for Uganda notes that significant human rights issues were observed, including unlawful killings and torture by security forces, harsh prison conditions, arbitrary detention, restrictions on freedom of press, expression, assembly and political participation, as well as, official corruption.¹⁰ During the period covered by this report the police arrested and detained members of the opposition.

[21] The same report also noted that the Ugandan government was reluctant to investigate, prosecute or punish officials who committed human rights violations, whether in the security services or elsewhere in the government and impunity was a problem. The objective evidence demonstrates that the fact that President Museveni and NRM have been in power since 1986 has resulted in the intertwinement of the ruling party with the state apparatus.¹¹

[22] Having considered this documentary evidence in conjunction with the claimant’s allegations about his political opinion, and the consequences of having strong political opinions that oppose the ruling party’s opinions, the panel finds that the claimant has a well-founded fear and that he faces a serious possibility of persecution based on his political opinion.

STATE PROTECTION

[23] As the agent of the persecution is the State which acts with impunity, as it transpires in the documentary evidence as discussed above, the panel finds that there is clear and convincing evidence that State protection would not be available to the claimant.

INTERNAL FLIGHT ALTERNATIVE

[24] Likewise, as the State is the agent of persecution and is in control of all of its territory, who oppose the ruling party face persecution across Uganda. Therefore, the panel finds that there would be no place throughout the country where the claimant would not face a serious possibility of persecution due to his political opinion.

[25] Therefore, considering both the testimony of the claimant and the documentary evidence as a whole, the panel finds that the claimant faces a serious possibility of persecution on a Convention ground, that of his political opinion.

CONCLUSION

[26] Based on the totality of the evidence before it, the panel concludes that the claimant is a Convention refugee and therefore accepts the claim.

(signed) Diane Hitayezu-Fall

October 1, 2019

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
² Exhibit 2, Basis of Claim.
³ Exhibit 1; Exhibit 6, pp. 1-7.
⁴ Exhibit 10, pp. 1-8: Affidavit from the claimant’s wife and other friends; Exhibit 9: Affidavit from his mother and grand-mother, Exhibit 6, pp. 10-11: FDC letters and Exhibit 10, pp. 9-12: Internet pas.
⁵ Exhibit 6, pp. 12-14 and Exhibit 7, pp. 2-4.
⁶ Exhibit 6, page 19 (“Release On Bond”).
⁷ Exhibit 8 (14 pages) and Exhibit 9, pp. 5-6.
⁸ Exhibit 3, National Documentation Package (NDP) for Uganda (March 29, 2019).
⁹ Idem, Tab 2.1
¹⁰ Ibidem
¹¹ Exhibit 3, Tab 4.4.

All Countries Uganda

2019 RLLR 102

Citation: 2019 RLLR 102
Tribunal: Refugee Protection Division
Date of Decision: January 7, 2019
Panel: S. Charow
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Uganda
RPD Number: TB8-08518
ATIP Number: A-2020-01459
ATIP Pages: 000139-000144

DECISION

[1] MEMBER: This is the decision for [XXX], File TB8-08518. I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. I would also add that I have also considered the guidelines relating to gender.

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

[3] I find that you are a Convention refugee for the following reasons.

[4] The allegations of your claim can be found in your Basis of Claim Form at Exhibit 2 and the subsequent amendment at Exhibit 6.

[5] In short, you alleged persecution as a member of a particular social group, namely that you are in danger of being harmed because of your gender as you have suffered domestic violence at the hands of your husband since about 2011.

[6] You fear that your husband would harm you or kill you should you return to Uganda and that the police cannot protect you.

[7] You believe that your husband could locate you anywhere in Uganda as he has influence over the police and people in the army due to his position with an AIDS organisation in Entebbe.

[8] You allege that he became friends with high-ranking AIDS patients he counselled and did favours for them, causing them to owe him favours as well as any favours that they may do for him because of their friendship.

[9] Your personal identity as a citizen of Uganda has been established by your testimony and the supporting document filed in Exhibit 1, namely your Ugandan passport. I find that on a balance of probabilities identity and country of reference have been established.

[10] In terms of your general credibility, I found you to be a fairly credible witness. I therefore accept what you have alleged in your oral testimony and in your Basis of Claim Form.

[11] I did find that there were some issues with your testimony. You testified that these high-ranking officials from the police or the military had come to your home; however, this information was not contained in your Basis of Claim Form.

[12] When I put that omission to you, you said that you were trying to narrow down the story and that you want to file amendments, but you didn’t have enough time to file an amendment to your Basis of Claim Form.

[13] I also noticed that you had described fleeing to your mother’s home, and that when your husband came to take you back to Entebbe, he came with men from the army. The fact that he brought army men with him was not included in your Basis of Claim Form.

[14] When I put that omission to you, you said as you mentioned before you had wanted to put it in your amendment, that you knew you had left out important information, but were trying to narrow down the story.

[15] When I am considering your explanations for these omissions, I do note that you are well educated, you have a university degree, and that you had the benefit of counsel both at the hearing but also when completing your Basis of Claim Form.

[16] Additionally, I note that you actually have submitted an addendum to your Basis of Claim Form at Exhibit 6.

[17] So, with these factors considered together, I find that the answers that you gave for these omissions have not adequately explained the identified omissions, and I make that finding even when considering your diagnosis of stressor-related disorder. I reference Exhibit 5, page 28.

[18] As such, I do draw a negative inference about your credibility from each omission. However, I find that the other credible evidence including other lines of testimony and your supporting documentation outweighs the concerns I have that stem out of these omissions.

[19] I find that when you were discussing the abuse that you had suffered, you were very credible. You described in detail the abuse you suffered at the hands of your husband over the course of your marriage. You also provided extensive documentation to support your claim.

[20] I note the existence of identity documents and medical documentation for your children, which does show the name of your husband as their father. I am satisfied therefore that you had a relationship with this man.

[21] I also note affidavits from your mother and from your aunt and from your landlady, and these people talked about what they personally witnessed and how they personally helped you, and these affidavits are consistent with your allegations, they are detailed and they speak to each of the individual experience in regards to your allegations.

[22] I also see a support letter from your sister, which again is consistent and detailed. I see a letter from your divorce attorney where you had described trying to get a legal divorce in Uganda so that maybe your husband will stop bothering your family.

[23] As well, I see a police report from Kampala, and although I did have some concerns because they said that they are looking for your husband, you said today that the police are not helping at all, you explained that even if nothing is being done by the police, they would still say that the investigation is ongoing, and that is indeed consistent with other evidence that we have in the National Documentation Package at Exhibit 3, which talks about the general lack of effectiveness of the Ugandan police, specifically when it comes to domestic violence issues, as I will discuss in a bit.

[24] I also note an affidavit from your uncle and a letter from your father, again consistent, detailed and specific to what they personally witnessed or experienced.

[25] When considering all of that and your credible testimony, I am satisfied that the events have occurred as alleged, that you would face persecution at the hands of your husband or his friends in the military or police should you return to Uganda. I find that you have established your subjective fear.

[26] I find that there is a link between what you fear and one of the five Convention grounds, specifically as a Ugandan woman who is at risk of domestic violence, you are a member of a particular social group because of your gender.

[27] Therefore, your claim has been assessed under Section 96 of the Immigration and Refugee Protection Act.

[28] I further find that you have an objective basis for your fear because of the documented conditions for Uganda as found in the National Documentation Package at Exhibit 3.

[29] I note Item 2.1 which states that gender-based violence was common. It was recorded that in 2016, there were 163 deaths of women due to domestic violence, which was almost a 50% increase over 6 years.

[30] I also note Item 5.5, which states that 56% of women aged 15 through 49 had experienced physical violence at least once since age 15. One of the factors behind these high prevalence rates is the widespread cultural acceptance of such violence.

[31] The same survey found that wife battering is widely accepted, with 58% of women and 44% of men believing that it’s justified for a man to beat his wife for specified reasons.

[32] When considering this, I find that your subjective fear has an objective basis. I find that you have a well-founded fear of persecution due to your gender.

[33] I find that State protection would not be reasonably forthcoming in this case as per the evidence already discussed.

[34] I also note that in Item 5.2 of the National Documentation Package at Exhibit 3, they talk about reasons why only a small percentage of victims of violence go to the police, and some of those reasons include apathetic attitudes among police officers towards domestic violence as well as the high cost associated with accessing police services and the desire by victims to keep families together.

[35] The same study also notes that gender-based violence is perceived as a private matter and that legal redress could compromise the livelihood of the victims.

[36] The same report also notes that gaps still exists in terms of State protection due to a lack of professionalism of law enforcement organisations, especially the police.

[37] In terms of an internal flight alternative, you have alleged that your husband has friends that are high-ranking officials in both the army and the military.

[38] You alleged that he developed these friendships because he was these people’s AIDS counsellor and would do them favours by ensuring that they could pick up their medication from your home instead of risking the stigma of members of the public finding out their AIDS status.

[39] You testified that you saw them come to your home on multiple occasions to pick up their medication and that you also saw them as the years progressed become friends with your husband as they would stay and have drinks.

[40] The fact that he has access to people in the military or the police is supported by the documents that you filed.

[41] Various family members and your landlady in their affidavits or letter stated that men in uniforms would come and enquire about you on your husband’s behalf. These people also affirmed or wrote that they had been harassed and arrested by members of the police. I refer to Exhibits 5 and 7.

[42] You have also alleged that should you relocate within Uganda, you would have to register with the local council, which is consistent with the documentary evidence in the National Documentation Package at Exhibit 3. On this matter, I find both your testimony and your written evidence to be credible.

[43] Accordingly, when considering the mandatory registration upon relocation, in combination with the established police and military connections of your agent of persecution, your husband, I find that on a balance of probabilities there is more than a mere possibility of persecution for you anywhere in Uganda as there is more than a mere possibility that your husband could find you if you had relocated or would relocate in the future and that he has been making ongoing efforts to find you.

[44] As the test for an internal flight alternative fails on the first prong, I find that there is no reasonable internal flight alternative for you anywhere in Uganda.

[45] Based on the totality of the evidence, I find the claimant to be a Convention refugee. Your claim is therefore accepted.

[46] So, this will conclude today’s hearing. I would like to thank everyone for their participation.

[47] Thank you, madam interpreter.

[48] INTERPRETER: Welcome.

[49] MEMBER: Thank you, counsel.

[50] COUNSEL: Thank you, madam member.

[51] MEMBER: Thank you, ma’ am.

[52] CLAIMANT: Thank you, ma’ am.

———- REASONS CONCLUDED ———-