Citation: 2021 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2021
Panel: Louis Gentile
Counsel for the Claimant(s): El-Farouk Khaki
Country: Uganda
RPD Number: TB9-30981
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000136-000139
DECISION
[1] MEMBER: This is the decision for the following claimant, XXXX XXXX XXXX, file number TB9- 30981. In reaching this decision, I have followed Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, and Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution.
[2] I’ve considered your testimony and the other evidence in the case, and I’m ready to render my decision orally.
[3] I would like to add that when written decisions are issued, they may be edited for spelling, syntax and grammar. Additional country documentation may also be added.
[4] You are claiming to be a citizen of Uganda and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
DETERMINATION
[5] I find that you are a Convention refugee because you face a serious possibility of persecution for the following reasons.
ALLEGATIONS
[6] You allege the following.
[7] You are a citizen of Uganda. You were raised as a Christian and became a XXXX XXXX XXXX. You supported LGBT XXXX at two XXXX where you worked in Uganda. As a consequence, you were accused of being a lesbian and you were abducted, severely assaulted and gang raped by three men on the orders of the father of two of your XXXX, who was a Major in the Ugandan army.
[8] You left your spouse and children behind and hid until you fled to Canada. You allege that as a suspected lesbian and as a supporter of LGBT rights, if you return to Uganda you will face persecution from the state, including members of the armed forces, and from members of the community.
[9] You allege that there is no state protection for you, nor any internal flight alternative.
IDENTITY
[10] Your personal identity as a citizen of Uganda has been established by your testimony and the supporting documents filed in the exhibits. These include a certified copy of a Ugandan passport with Canadian TRV and a copy of your Ugandan birth certificate.
[11] I therefore find, on a balance of probabilities, that identity and country of nationality have been established.
NEXUS TO SECTIONS 96 OR 97
[12] I find that there is a link between what you fear and one of the five Convention grounds, specifically, your membership of a particular social group as an imputed sexual minority and as a defender of LGBT rights. Therefore, this claim has been assessed under section 96.
CREDIBILITY
[13] In terms of your general credibility, I have found you to be a credible witness and I therefore accept on a balance of probabilities what you have alleged in your oral testimony and in your Basis of Claim form. In support of your claim, you provided documents confirming that you were a XXXX at the XXXX you described, that there was a controversy surrounding allegations of homosexuality at one of the XXXX that reached the media, and that you were the victim of a sexual assault in 2018.
[14] You also provided statutory declarations and letters of support from numerous friends and former colleagues familiar with your circumstances and the accusations against you because of your imputed sexual orientation as a lesbian and your support for LGBT students. These include a letter from MJ, an administrator at XXXX XXXX XXXX, who witnessed your arrest by Major B., statutory declarations from the dental surgeon, Dr. A.S., who treated some of your injuries in 2018, and from Dr. M.H.K., who treated your internal and bodily injuries.
[15] Your testimony was straightforward, unrehearsed, responsive to questioning and was in keeping with your Basis of Claim form and there were no significant inconsistencies or omissions.
[16] Your description of your experiences defending the rights of LGBT XXXXat two XXXX in Uganda was detailed, convincing and unrehearsed, as was your testimony about the brutal assault perpetrated against you by Major B and his men. You also described in detail the pain of having to leave your husband and children behind in Uganda to seek safety in Canada.
[17] I therefore believe what you have alleged in support of your claim and I find the following to be credible.
[18] That on a balance of probabilities, you are a XXXX from Uganda who defended the rights of LGBT XXXX and that many people believe that you are a lesbian, although you are not. You were brutally assaulted by members of the military as a consequence of your imputed sexual orientation and your defence of LGBT students.
[19] You have credibly established your subjective fear of persecution, including violence, from members of the community and imprisonment from the state.
PERSECUTION RISK
[20] The objective documentation supports your allegations that individuals in your circumstance face persecution. Ugandan law criminalizes sexual acts between mutually consenting people of the same sex, NDP item 6.1 at page 22. Senior government Ministers have engaged in openly-hostile rhetoric against the practice of and legalization of same-sex behaviour, NDP item 6.2, page 1.
[21] Ugandan police are often seen as the principal violators of the rights of LGBT citizens, item 6.2 at page 21. Homophobic views are widespread in society. LGBT persons are not only not accepted, they’re often believed to be or accused of being an intrusion of western values into Ugandan society, NDP item 6.4 at paragraph 2.4.14.
[22] Your counsel also provided additional evidence in Exhibit 5 confirming that the persecution of LGBT citizens in Uganda has continued and, in some cases, intensified during the COVID pandemic. Therefore, I find that you have a well-founded fear of persecution.
STATE PROTECTION
[23] I find that adequate state protection would not be available to you were you to seek it in Uganda. The objective documentary evidence indicates that homosexuality is criminalized throughout Uganda and authorities often do not provide adequate protection or access to justice to victims of crime with diverse (inaudible) or imputed minority sexual orientation and the police themselves are often seen as the principal violators of the rights of LGBT citizens.
[24] Furthermore, in your case, an agent of the state from the armed forces has been the principal agent of persecution. In light of the above objective country documentation and the evidence presented, I find that the claimant has rebutted the presumption of state protection clearly and convincingly.
[25] Based on your personal circumstances as well as the objective country documentation, I find that adequate state protection would not be available to you in Uganda.
[26] On internal flight alternative, I have also considered whether a viable internal flight alternative exists for you. The country documentation indicates that the situation for individuals in circumstances such as yours is the same throughout the country and that you would face a serious possibility of persecution or risk to life anywhere in Uganda.
[27] Furthermore, I observe that members of the armed forces have subjected you to persecution and, as such, I find there is no viable internal flight alternative for you in Uganda.
[28] In conclusion, based on the totality of the evidence, I find the claimant to be a Convention refugee, as she faces a serious possibility of persecution because of her imputed sexual orientation as a lesbian and her active support for LGBT rights. Your claim is therefore accepted.
———- REASONS CONCLUDED ———-