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.