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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 GenderĀ­ 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 5th 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 11th 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 3rd 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 3rd 2019, however in the report it indicates that the psychologist saw the principal claimant on January the 20th 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 ———-