Citation: 2020 RLLR 63
Tribunal: Refugee Protection Division
Date of Decision: October 13, 2020
Panel: S. Chauhan
Counsel for the Claimant(s): Juliette Ukpabi
Country: Uganda
RPD Number: VC0-02644
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000020-000029
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of [XXX] (the “claimant”), who is a citizen of Uganda, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]
[2] In rendering it’s reasons, the panel has considered the Chairperson’s Guideline on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE).
ALLEGATIONS
[3] The following is a brief synopsis put forth by the claimant in her Basis of Claim (BOC) form.[2]
[4] She fears persecution at the hands of the society, her husband, and the government of Uganda due to her sexual orientation.
[5] The claimant is a bisexual woman. She first had a same-sex relationship at the age of 17 in 1996. Her mother suspected her of being a lesbian, hence the claimant was enrolled in a religious school. In 2002, she joined [XXX] University and met her girlfriend, [XXX]. They began a serious relationship, which continues to date. The claimant and [XXX] were suspended from university in the final year after being caught in sexual activities on the campus.
[6] The claimant married her husband on [XXX], 2009 due to family and societal pressure. She gave birth to her daughter in 2013. However, her husband mistreated her and used to sexually abuse her. She tried to leave him many times but every time he would find her and compel her to come back. In the meantime, the claimant continued her relationship with [XXX].
[7] On [XXX], 2017, the claimant’s husband caught her in an intimate position with [XXX] and beat her up. The neighbours came to know about the claimant’s sexual orientation and told her husband that they do not want her living in that neighbourhood as she will be a bad influence on their children. The next day, on [XXX], 2017, the claimant’s husband took all the evidence about the claimant’s sexual activities from her phone and presented it to the village elders. She was locked up in prison. However, the claimant’s brother-in-law, who is a [XXX], helped her escape the prison on [XXX], 2017.
[8] The claimant went into hiding with the assistance of her sister and [XXX]. The claimant’s husband and her community members, meanwhile, continued to search for her.
[9] The claimant was able to escape Uganda with the help of an agent on [XXX], 2019. She reached Canada on [XXX], 2019 and filed for refugee protection.
DETERMINATION
[10] The panel finds that the claimant is a Convention refugee as she has established a serious possibility of persecution on account of her membership in a particular social group for the following reasons.
ANALYSIS
Identity
[11] The claimant did not have a passport on her when she reached Toronto on [XXX], 2019. The panel asked the claimant if she had a passport issued to her by any country. She stated that she has her original Ugandan passport with her at the hearing. A copy of this passport is marked Exhibit 5. She was asked if she travelled from Uganda to Canada using this passport. The claimant explained that she travelled from Uganda to [XXX] using this passport. When she reached [XXX], the agent who was assisting her in her escape, then took her passport from her and gave her another passport with her picture but with a different name and date of birth on it. That passport had a visa to Canada on it. When they reached Toronto, the agent took all the documents from her and left her alone at the airport.
[12] The claimant was then asked how she has her passport on her if the agent took her passport from her. She stated that he returned to Uganda and handed her original passport to her sister. Her sister then couriered the passport to her (claimant) in Canada. The claimant showed the delivery receipt and envelope used to mail the passport using the DHL courier service to the panel.
[13] Based on the claimant’s reasonable explanation, as well as the documentary evidence produced at the hearing, the panel is satisfied with the claimant’s identity as a Ugandan national and accepts that she is who she says she is. Specifically, the panel finds that the claimant’s identity as a national of Uganda has been established, on a balance of probabilities,
based on her sworn statement and copies of her Ugandan National Identification Card[3] and Ugandan passport on file.
Credibility
[14] At a Refugee Protection Division (RPD) hearing, the presumption before the panel is that a claimant’s testimony is true; however, this can be rebutted in appropriate circumstances such as inconsistencies, contradictions, omissions and undetailed testimony. However, this was not the case here. The claimant testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before the panel. She did not appear to embellish her testimony at any point.
[15] The claimant explained that she has always been attracted to men and women alike, and this is how she was born. It is natural for her to feel attracted to both men and women. She stated she will feel suffocated if her ability to express herself sexually is taken away from her. When she started her relationship with [XXX], she felt completely satisfied in that relationship, which is why it has lasted this long and is still going strong.
[16] The panel canvassed her about her relationship with her husband. The claimant explained that she was born into a Muslim family and that her father is a very religious person. When her parents discovered her bisexuality, they forced her to marry her husband, even though she did not want to marry him. Her father then locked her up in a garage for a week until the claimant relented and agreed to marry her husband. However, she has never felt attracted to him because he has been abusing her since they got married. When her husband discovered her in an intimate position with [XXX] on [XXX], 2017, he beat her up and took her to the village elders, who then put her in jail after registering a case of homosexuality against her. She has been separated from him since then and has no plans to ever live with him again because he is a heartless man and is still looking for her so that he could put her in jail. When asked how she knows that her husband is still looking for her, the claimant stated that her sister gives her updates whenever she talks to her. The claimant stated that the police is also on the lookout for her since there is a case pending against her and because she escaped from jail.
[17] The claimant was asked where she had lived after escaping jail in Uganda. She stated that she went into hiding in different villages and towns with the help of her sister and her partner, [XXX]. They were the ones who would provide her with everything she needed while in hiding, including taking care of her children. [XXX] and her sister arranged for a travel agent to help her escape from Uganda.
[18] The claimant has provided documentary evidence to support her claim. The panel has no reason to doubt the genuineness of these documents, which form Exhibit 4, and accepts them as genuine. In doing so, the panel finds that this evidence corroborates her claim as a bisexual woman. The documentary evidence contains the following:
- Letter of support from claimant’s former roommate at the university;
- Letter of support from claimant’s brother-in-law, who is a [XXX] and helped her escape from prison;
- Affidavit from claimant’s sister, affirming the events faced by the claimant;
- Affidavit from [XXX], affirming her relationship with the claimant and the events faced by them in Uganda;
- Claimant’s marriage certificate;
- Claimant’s proof of enrollment at the [XXX] University;
- Letter of support from Centre for Newcomers’ in Canada, supporting the claimant as a member of the LGBTQ community;
- Letter from [XXX] Church in Canada affirming claimant’s sexual orientation;
- Claimant’s pictures with [XXX]; and
- Claimant’s text messages with [XXX].
[19] Based on the claimant’s straight-forward and frank testimony, as well as the corroborative evidence discussed above, the panel finds her to be a credible witness and accepts her allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, the panel accepts that she is a bisexual woman, that the police arrested her on [XXX], 2017 following the complaint by her husband to the village elders regarding her sexual activities; that the claimant’s brother-in-law helped her escape from jail; that she went into hiding with the help of [XXX] and her sister, and that the police and her husband are now looking for her. The panel also accepts that the claimant has a subjective fear of returning to Uganda on account of her sexual orientation.
Well-founded fear of persecution and Risk of harm
[20] The persecution that the claimant faces has a nexus to one of the five Convention grounds, that of membership in a particular social group, i.e. her sexual orientation as a bisexual, and therefore this claim is assessed under section 96 of the Act.
[21] The panel finds that the claimant has established that she has a well-founded fear of persecution due to her bisexuality, which is supported by objective evidence. The documentary evidence shows a high level of societal homophobia in Uganda and also that same-sex relationships are illegal in that country. The country documentation is consistent with the claimant’s past experiences and confirms her forward-looking fear of returning to Uganda as discussed below.
The objective evidence shows that homosexuality is a crime in Uganda.[4] Section 145 and 146 of the Ugandan Penal Code specify that any person acting against the order of nature and committing unnatural offences shall be imprisoned from seven years to life. Section 148 regarding indecent practices states that:
[22] Any person who, whether in public or in private, commits any act of gross indecency with another person or procures another person to commit any act of gross indecency with him or her or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or in private, commits an offence and is liable to imprisonment for seven years.[5]
[23] Uganda’s openly hostile rhetoric has aggravated discrimination and violence against members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. Several cases of people subjected to forced anal examinations to prove engagement in proscribed
consensual same-sex acts have been documented.[6]
Statements by Ugandan officials have further fueled the sentiment of the public and authorities against the LGBTI community.[7]
Uganda’s President, Yoweri Museveni, 2017: “Africans here, we know a few people who are ‘rumoured’ to be homosexuals, even in history we had some few being rumoured, but you cannot stand up here and say “I am a homosexual.” People will not like it. So whenever we talk to our partners in other parts of the world [we say]: “please that’s a private matter, you leave it”. But no, they want to impose it on you… that I should stand up and say, ‘oh yeah, homosexuals, oh yeah.’”
Minister of Health for General Duties Sarah Opendi, 2017: “Homosexuality remains an illegally activity, according to our laws and, therefore […] we cannot be seen doing the opposite […] the Global Fund money is supposed to help in the fight against malaria and other diseases not buying lubricants for homosexuals.”
Minister of Ethics and Integrity, Simon Lokodo, 2017 (variously): “Homosexuality is not allowed and completely unacceptable in Uganda. […] We don’t and can’t allow it. LGBT activities are already banned and criminalised in this country. So popularising it is only committing a crime”. “It’s true I ordered the police to stop and shut down all the gay pride events. No gay gathering and promotion can be allowed in Uganda. We can’t tolerate it at all. […] We know they are trying to recroit and promote homosexuality secretly. But it’s worse to attempt to stand and exhibit it in public arena. This is totally unacceptable. Never in Uganda.”[8]
Amnesty International, in its Human Rights Review of 2019 in Uganda noted that:
In May, police acting on orders from the Minister of Ethics and Integrity raided and stopped an event organized by NGOs, Chapter Four Uganda and Sexual Minorities Uganda, to commemorate the International Day Against Homophobia and Transphobia. Between July and October four LGBTI people were killed in the wake of heightened anti-LGBTI sentiments being expressed by political leaders. Those killed included Brian Wassa, a gay paralegal who died on 5 October of a brain hemorrhage as a result of head injuries from an attack by unknown assailants the previous day at his home in Jinja town in the Eastern region. Uganda investigative authorities have not publicly commented on the killing. A transwoman from Gomba district, and a gay man from Kayunga district (both in the Central region) were also killed in attacks by unidentified assailants. In October, the police arrested 16 LGBTI activists and subjected them to forced anal examinations after the Ethics and Integrity Minister announced plans to introduce the death penalty for consensual same-sex sexual activity which is already punishable by life imprisonment. In November, the police charged 67 out of 125 people, arrested at a bar popular with LGBTI people, with “common nuisance”, punishable by imprisonment of up to one year. Their court case was ongoing at the end of the year, and they were required to report to the police each week for their bail conditions to be reviewed.[9]
[24] Human Rights Awareness and Promotion Forum (HRAPF),[10] in its report on human rights abuses and violations against the LGBTI community, notes that:
- Uganda’s laws and policies do not specifically protect LGBT persons against violations within the criminal justice system,
- There is a trend towards human rights-based detention and imprisonment practices embraced by both the police and the prisons,
- LGBT persons in police detention suffer violations attributable mainly to their sexual orientation, and
- LGBT persons in prison face discrimination and abuse of their dignity.
[25] Therefore, based on all the evidence before it, the panel finds that the claimant faces more than a mere possibility of persecution at the hands of state and non-state actors in Uganda by way of her membership in a particular social group, namely a bisexual person. Her fears of persecution in her country are indeed well-founded.
State protection and Internal flight alternative (IFA)
[26] The panel finds that state protection would not be reasonably forthcoming to the claimant as one of the agents of persecution is the state. The laws prohibiting homosexuality apply throughout the country and so do the laws that fail to protect homosexuals from discrimination and persecution. Therefore, the panel finds that the presumption of state protection has been rebutted.
[27] The country condition documents indicate that the high level of discrimination against homosexuals exists throughout the country. As such, the panel finds that there is no viable IFA available to the claimant in this case in Uganda
CONCLUSION
[28] Based on the analysis above, the panel concludes that the claimant is a Convention refugee as per section 96 of the Act. Accordingly, her claim is accepted.
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Exhibit 2.
[3] Exhibit 4.
[4] Exhibit 3, National Documentation Package (NDP), Uganda, September 30, 2020, Item 6.2.
[5] Exhibit 3, NDP, Item 6.2.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Exhibit 3, NDP, Item 2.2.
[10] Exhibit 3, NDP, Item 6.5.