Citation: 2021 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2021
Panel: Miranda Robinson
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Uganda
RPD Number: TC0-01000
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
MEMBER:
Introduction
[1] I have considered your testimony and the other evidence in this case, and I am ready to render my decision orally. These are the reasons for the decision in the claim of XXXX XXXX, who claims to be citizen of Uganda and is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons, I have considered and applied the Chairperson’s guidelines number 9, proceedings before the IRB involving sexual orientation and gender identity and expression.
Allegations
[2] Your allegations are found in your Basis of Claims forms and narrative in Exhibit 2, as well as in the amendments in Exhibits 7, 9, and 10, and in oral testimony heard today. In summary, you allege persecution in Uganda at the hands of the government and its authorities as well as the anti-LGBTQ society for your sexual orientation as a gay man.
Decision
[3] I find that you are a refugee pursuant to s. 96 of the Immigration and Refugee Protection Act, as there exists a serious possibility of persecution should you return to Uganda on account of your membership in a particular social group, that is, as a person that identifies as a gay man.
Identity
[4] I find that your identity as a national of Uganda is established by the documents provided, relying primarily on the certified copies of your passports in Exhibits 1 and 4.
Credibility
[5] I did find you to be a credible witness and therefore believe what you have alleged in support of your claim. You testified in a straightforward manner. You spoke naturally and spontaneously, and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. In particular, you testified credibly regarding how you came to understand your own sexuality and attraction to the same sex, specifically to your long-term same-sex partner, XXXX (ph), in Uganda. You explained that knowing from a young age that same-sex relationships were generally not accepted at school and in your community, and so you tried to keep your relationship secret or hidden, but it was exposed at school, and after which you were both expelled. Years later, you continued your relationship, and it also became exposed again as an adult in late July 2020 — sorry, in late July 2019. After this exposure, you allege that you were dismissed from work and you had been physically attacked by a group of strangers who used homophobic slurs. After relocating on two occasions, you also obtained a visa and departed to Canada.
[6] I note you have also provided evidence to establish the allegations as set out above, and after reviewing the documents, I have no reasons to doubt their authenticity, and I do give weight to the following documents. To establish your sexual orientation and the other allegations, you have provided a statutory declaration and a letter of support from your same-sex partner in Uganda. These attest to the exposure of the relationship and the targeting and violence. You provided a letter from Icebreakers Uganda, which is an LGBTQ organization that you sought support from after your same-sex relationship was exposed. You’ve also provided letters, such as from the African Centre for Refugees, stating your participation in their events and programs, including the LGBTIQ Black Lives Matter protest in July of 2020, and that you have shared your experiences as a sexual minority in their awareness program. I also note they have included a brochure which includes multiple photos of you participating in the LGBTIQ Black Lives Matter protests, and additional photos that you have also provided and testified credibly about. You’ve given a letter from the friend that you stayed with after your attack in October of 2019, as well as letters of support and XXXX XXXX from the Canadian Centre for Victims of Torture, which detail your descriptions of your sexual orientation and your experiences as a result. Based on the totality of the evidence and the credible testimony, I find on a balance of probabilities that you are person that identifies as gay, that you have been in a same-sex relationship in Uganda which was exposed publicly before you came to Canada. I find your subjective fear is established.
Objective Basis
[7] Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence set out below, I find you have established a prospective risk and a well-founded fear of persecution in Uganda. The risk is corroborated by Exhibit 3, the National Documentation Package for Uganda, as well as country conditions in Exhibit 6.
[8] Item 2.1 of the NDP states that consensual same-sex sexual conduct is criminalized, according to colonial-era laws that criminalize “Carnal knowledge of any person against the order of nature,” and that these provide for a penalty of up to life imprisonment. Attempts to commit unnatural offences as laid out in the law are punishable with seven years of imprisonment, and the government has occasionally enforced the law in recent years. As well, although the law does not restrict freedom of expression or peaceful assembly, for those involved with LGBTI groups or speaking out in support of their rights, the government has severely restricted these rights, and the law does not prohibit discrimination against LGBTI persons in areas such as housing, employment, or access to government services. Item 6.1 states that authorities typically consider merely being a homosexual or being in a same-sex relationship as a breach of sodomy laws, and simply violating social norms can also create this presumption of these acts. As well, it indicates that some officials have had a much broader understanding of unnatural acts than has been defined in courts, and this has been used to justify harassment, arrest, and incarceration of sexual minorities, regardless of whether they have engaged in any illegal sexual act or not. 6.2 also details that homophobic views are widespread in society and are openly promoted in government and religion. I therefore find on a balance of probabilities the objective basis for this claim has also been established.
Nature of the Harm
[9] I have examined your claim under s. 96 of IRPA as I conclude the risk you describe constitutes persecution based on at least one of the grounds in s. 96, specifically your membership in a particular social group as a man who identifies as a gay person. I find you are at risk of harassment, discrimination, arrest, and imprisonment for your sexuality, as well as an inability to live freely as a sexual minority.
State Protection
[10] I find it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances as the agent of persecution is the state. As mentioned in the objective evidence, same-sex activity is criminalized throughout Uganda, and it is indicated throughout the evidence that authorities do not provide adequate protection or access to justice for victims of crimes who are LGBTQ. Additionally, police themselves are often seen as the principal violator of rights against this community, and therefore, the presumption of state protection is rebutted.
Internal Flight Alternative
[11] I have also examined whether a viable internal flight alternative for you. Based on the evidence on file, I find that you face a serious possibility of persecution throughout Uganda. Again, the laws condemning same-sex acts and relationships are consistent throughout the country, and there is no part where you would not face persecution or that you would be able to live freely. I therefore find there is no internal flight alternative available to you.
CONCLUSION
[12] In light of the preceding, I conclude that you are a refugee pursuant to s. 96 of the Immigration and Refugee Protection Act, and accordingly, I accept your claim today.
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