Citation: 2020 RLLR 157
Tribunal: Refugee Protection Division
Date of Decision: November 20, 2020
Panel: Sarah Acker
Counsel for the Claimant(s): Kingsley I Jesuorobo
Country: Uganda
RPD Number: TB8-31855
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000118-000122
DECISION
[1] MEMBER: This is the decision for the following claimant, XXXX XXXX, who claims to be a citizen of Uganda and is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act, the file number is TB8-31855. I’ve considered your testimony and the other evidence in the case and I’m ready to render my decision orally.
[2] I find that you are a Convention refugee on the grounds of your membership in a particular social group as civil society activist, specially a member of Sexual Minority’s Uganda SMUG, pursuant to s. 96 of the IRPA. The details of your claim are set out in your Basis of Claim form and are supplemented by your testimony at today’s hearing.
[3] In summary, you fear persecution in Uganda at the hands of the Ugandan government, state authorities and broader community due to your work as a XXXX XXXX XXXX for SMUG. You also allege that there is no state protection or internal flight alternative available to you in Uganda.
[4] Your country of reference and personal identity as a citizen of Uganda has been established on a balance of probabilities by your testimony and the following supporting document filed in Exhibit 1, namely a certified true copy of your Ugandan passport that was submitted to the Minister.
[5] I find that there’s a nexus between what you fear in Uganda and one of the five grounds enumerated in s. 96 of the IRPA, that is your membership in a particular social group, civil society activist, specifically an activist for Sexual Minorities in Uganda. Therefore, your claim is assessed under s. 96 of the IRPA and there is no need to conduct as. 97(1) analysis.
[6] In terms of your general credibility, I found you to be a credible witness with regard to the material issues in your claim. There were no significant inconsistencies or omissions between your BOC, testimony and the other evidence before me.
[7] Okay. You testified today that you were raised in a religious protestant environment and as a teenager, you heard your church leader speaking negatively about members of the gay community. You did not agree with their perspectives and stated that, “We are all human beings no matter our different beliefs”. When you were old enough, you left you childhood church and joined a church that was a place of worship and did not speak negatively about the LGBT, lesbian, gay, bisexual, transgender community.
[8] At your church, you met a man named WK who you befriended. After some time, WK revealed his sexual orientation to you as a gay man and told you about his involvement in a gay rights organization called SMUG. You joined SMUG as a straight ally and participated in discussions about how you could assist the LGBT community in Uganda.
[9] I asked you to tell me about that in greater detail. You testified that creating a safe network for the LGBT community was one strategy you helped SMUG work on. You explained that because being gay is illegal in Uganda, gay people need to be able to talk to trusted people who can help connect them with other trusted members of their network. You helped assist with this strategy.
[10] You also testified about you and SMUG members focused on trying to change societal perceptions of the gay community by encouraging participation of gay members in local communities, gaining the trust of people and civic organizations and then slowly their diverse SOGIE to individuals who have grown to accept them as human beings.
[11] You testified credibly and with knowledge about SMUG’s activities and your involvement in them. You also submitted a supported document from a safety and protection officer at SMUG in support of your claim. This letter contains SMUG’s contact information and logo in its letterhead. It describes your involvement in SMUG and the persecution you faced because of that involvement. I find this letter to be credible.
[12] You testified that members of SMUG have been targeted for their advocacy in the past, including a XXXX for the organization named XXXX XXXX (ph) who was murdered in 2011. You also mentioned receiving threats because of your involvement in SMUG. After attending a meeting at the XXXX Hotel, you started receiving threatening phone calls and text messages warning you to stop your association with the LGBT community. You were also approached near your home by a man, who identified himself as XXXX XXXX XXXX, claiming to be a father of a colleague of yours from SMUG. When you asked your SMUG colleagues if any of them knew XXXX XXXX XXXX, they said they did not. XXXX XXXX XXXX threatened to kill you “for spoiling his son” and promoting homosexuality. These details are confirmed by the SMUG letter that I mentioned earlier that can be found in Exhibit 6 of the consolidated list of documents.
[13] I, therefore, find on a balance of probabilities that you are involved as a straight ally in a gay rights organization in Uganda, called Sexual Minorities Uganda, and that you were threatened because of this affiliation. I also find on a balance of probabilities that you fear persecution because of your involvement with SMUG.
[14] While I have credibility concerns about other parts of your evidence, those concerns did not outweigh the allegations that were proven on a balance of probabilities. Given that you have credibly made out key allegations and established a subjective fear of persecution, the other concerns that I had are not determinative. I, therefore, find on a balance of probabilities that you have a subjective fear of persecution in Uganda because of your civil society activism, particularly your membership in SMUG.
[15] As a result, and it’s mentioned previously, this claim is being assessed under s. 96 of the IRPA and I find that you have established a nexus to a Convention ground, namely your membership in a particular social group, civil society activist for Sexual Minorities in Uganda.
[16] In addition, to your credible testimony and the other evidence before me today, the objective evidence in this case supports your claim. Same sex acts are criminalized in Uganda. Section 145 of Ugandan Penal Code Act criminalizes, “Carnal knowledge against the order of nature”, the sentence is life imprisonment. NDP Item 6.1 explains that this section of the penal code is often used to prosecute men for same sex activities and also criminalizes activities in support of sexual minority rights.
[17] NDP Item 2.9 reinforces that advocating on behalf of the LGBT community in Uganda is considered, “Promoting or committing a hate crime — or, pardon me, a crime”. Gay rights activists face a myriad of threats, physical, verbal, digital and are under constant surveillance. Instances of documented threats and violence against gay rights activists include NDP Item 2.9 in Bunamwaya July of 2018, a staff member of a human rights organization for transgender people was attacked outside of his office. In December of 2010, as you’ve mentioned, David Keto, a gay rights activist who was outed as a gay man in a Kampala (ph) tabloid was murdered.
[18] NDP Item 6.1 provides examples of SMUG activities being unlawfully detained and tortured by Ugandan state authorities because of their work. This is the organization that you worked for. The NDP states, “In July of 2008, an activist with the organization Sexual Minorities Uganda alleged that police tortured and humiliated him during an illegal detention.” In 2009, SMUG reported further police harassment of its members. Two activists, FW and BM were arrested on April 5th, 2019 and charged with, “Homosexual conduct” on April 17th of that year. The men were remanded to Maluke (ph) prison, where they were detained for several weeks until released on bail.
[19] NDP Item 2.9 discusses the effect of this targeting on gay rights advocates in Uganda. The NDP states that with offices broken into and people assaulted, this causes an environment of fear and uneasiness that can affect human rights defenders’ mental health, provide them anxiety, depression, feelings of isolation and post-traumatic stress disorder. NDP Item 4.4 states that the human rights awareness and promotion forum, a group that promote minority rights in Uganda, suffered its second break-in on February 9th of 2018. Overall, 30 non-governmental organizations have had their offices broken into since 2012. NDP 4.6 details other types of government attacks on gay rights activists. For example, on April of 2014, the LGBT community in Uganda was reportedly targeted by Zeuz (ph) Malware, a spyware often used to steal banking information through techniques including keystroke logging and form grabbing. Human rights defenders routinely report theft of servers and other computer material and hacking of websites.
[20] In summary, the National Documentation Package cites numerous acts and threats of physical and cyber violence against gay rights activists in Uganda. I, therefore, find on a balance of probabilities that your subjective fear of persecution on account of your political activism with SMUG in Uganda has an objective basis and is well-founded. I am satisfied that you face a serious possibility of persecution if you were to return to Uganda.
[21] While states are presumed to be capable of protecting their nationals, it is open to a claimant to rebut the presumption of protection with clear and convincing evidence. In this case, one of the agents of persecution is the state because of board facing persecution that you would face in Uganda is at the hands of state authorities, given that your conduct is considered to be promoting a crime. Under personal circumstances as well as the objective country documentation, I find on a balance of probabilities that you have rebutted the presumption of state protection with clear and convincing evidence, and that there is no state protection available to you.
[22] Given that the state is the agent of persecution and there is no objective evidence that shows the state does not have control over the entire country of Uganda, I find on a balance of probabilities that you would face a serious possibility of persecution throughout Uganda, and therefore, a viable internal flight alternative does not exist for you.
[23] Having considered your testimony, the documentary evidence presented and the objective evidence before me, I find that there is a serious possibility persecution in Uganda at the hands of the Uganda government and its security forces, as well as the broader Ugandan community if you return there. For the aforementioned reasons, I conclude that you are a Convention refugee pursuant to s. 96 of the IRPA and I accept your claim.
[24] So, XXXX XXXX XXXX, that concludes my decision and that concludes today’s hearing. Thank you for your participation in your hearing today, and thank you to Counsel for your assistance, and I wish you all the best. Stay healthy.
CLAIMANT: Thank you so much, Madam Member.
COUNSEL: Thank you.
MEMBER: My pleasure, be well.
COUNSEL: Thanks.
MEMBER: Bye, bye.
COUNSEL: Bye, bye.
CLAIMANT: Bye.
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