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 ———-