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