Citation: 2021 RLLR 65
Tribunal: Refugee Protection Division
Date of Decision: July 30, 2021
Panel: Miranda Robinson
Counsel for the Claimant(s): Bola Adetunji
Country: Uganda
RPD Number: TC0-04879
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: Okay, so we are back on the record. As I stated previously, I am just going to read through the decision in full and I do ask that if you have anything you wish to say, or if you have any questions or concerns, please wait until I have completed reading the decision. Okay?
[2] CLAIMANT: Okay.
[3] MEMBER: Okay. So I will read the decision now.
[4] CLAIMANT: All right.
INTRODUCTION
[5] 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 a citizen of Uganda and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[6] In rendering my reasons, I have considered the Chairperson’s Guideline No. 9: Proceedings Before the IRB involving Sexual Orientation and Gender Identity and Expression.
ALLEGATIONS
[7] Your allegations are found in your Basis of Claim forms and narrative in Exhibit 2, as well as in oral testimony heard today.
[8] In summary, you allege persecution from Ugandan authorities and the homophobic community in Uganda for your sexual orientation as a gay man. You allege that you have been charged with crimes relating to a workshop that you attended that was organized by an LGBT group in Uganda.
DECISION
[9] I find that you are a refugee, pursuant to Section 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, which is as a gay man.
Identity
[10] I find that your identity as a national of Uganda is established by the documents provided, primarily the certified copy of the passport, as well as your Ugandan identity card and driver’s licence, which are given in Exhibits 1 and 4.
Credibility
[11] I find you to be a credible witness and therefore believe what you have alleged in support of your claim.
[12] You testified in a straightforward and direct manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. You testified credibly regarding your same-sex relationships that you had been in, including providing details of the relationship genesis and how they grew, as well as how you kept these mostly hidden from the public.
[13] You explained and provided details with your interactions with LGBT organizations in Uganda, including the GALA Initiative and Sexual Minorities Uganda, also referred to as SMUG.
[14] In regard to the event precipitating your departure from Uganda, you testified that you were participating in an LGBTQ workshop hosted by GALA when you were attacked by several men after you departed. When you tried to go to the police to inform them of the incident and for protection, they counter-accused you of unlawful assembly and continued to harass, target, and threaten you after this incident, as well as you allege that you were harassed, targeted, and threatened by others in the homophobic community after this knowledge of your participation in this event came out. After speaking with a SMUG safety protection officer, you were advised to leave the country for your own safety, at which time you prepared your visa application for Canada.
[15] I note that you were forthright about being in two relationships with women in Uganda, and that you have two children born of these. You stated that you were pressured by family to enter into these relationships, and that you maintained your long-term same-sex relationship with XXXX while you were engaged to XXXX. You explained that you were never interested in the relationships with women, and that it was only to appease your family that you entered into them.
[16] I accept this explanation. It is reasonable. And I therefore do not hold any negative credibility inference regarding your sexual orientation because of these relationships.
[17] Overall, apart from that, your testimony was internally consistent and was in line with the objective evidence. I do note you have provided documentary evidence to corroboration the allegations of this claim, and after reviewing the documents you have provided, I have no reasons to doubt their authenticity.
[18] In particular you have provided an affidavit from your ex-partner, XXXX, along with photographs of the two of you together. You testified there were many years between the two photographs and it appears to be so based on the general aging of the both of you. You have also given letters of support from GALA Initiative and SMUG – Sexual Minorities Uganda, indicating your participation in their events and activities, as well as their knowledge of your sexual orientation and the targeting that you faced.
[19] You have given the release on bond from the police after your arrest to corroborate your arrest. As well as a letter of support from friends in Canada attesting to their knowledge of your sexual orientation and your participation with LGBTQ organizations, as well as a letter of support from your current same-sex partner.
[20] I therefore find on a balance of probabilities that you are a gay man that has been in same-sex relationships in Uganda and in Canada, that you have been targeted for your work with LGBTQ organizations in Uganda, and that your subjective fear is established.
Objective Basis
[21] Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence set out below, I find that you have established a prospective risk and a well-founded fear of persecution in Uganda.
[22] This risk is corroborated by the National Documentation Package for Uganda in the April 16th version in Exhibit 3. Item 2.1 of the NDP states that consensual same-sex sexual conduct is criminalized, according to a colonial era law that criminalizes “carnal knowledge of any person against the order of nature”. This provides for a penalty of up to life imprisonment. Attempts to “commit unnatural offences” as laid out in law are punishable with seven years of imprisonment, and the government of Uganda does enforce these laws. Although the law does not restrict freedom of expression or peaceful assembly for those speaking out in support of the human rights of LGBTI persons, the government does severely restrict such right. Further, the law does not prohibit discrimination against LGBTI persons in areas such as housing, employment, nationality laws, or access to government services.
[23] Item 6.1 states that authorities typically consider merely being a homosexual as a breach of the sodomy laws, and simply violating social norms can create a presumption of sodomy. Historically, some officials have had a much broader understanding of the “unnatural acts” than the courts have actually defined, and this has been used to justify harassment, arrests, and incarceration of sexual minorities, regardless of whether they have engaged in illegal sexual acts or not. And, further to this, Ugandan authorities typically identify homosexuality itself as a breach of the law, regardless of an individual’s sexual practices.
[24] 6.2 notes that the homophobic views are widespread in Ugandan society and are openly promoted in government and in religious areas.
[25] I therefore find the objective basis for this claim has been established.
Nature of the Harm
[26] I have considered your claim under Section 96 of IRPA as I conclude the risk you describe constitutes persecution based on at least one of the grounds in Section 96, specifically membership in a particular social group as a gay man. I find you are at risk of harassment, discrimination, arrest, physical harm, and imprisonment for your sexuality, as well as an inability to live freely as a sexual minority.
State Protection
[27] I find that it would be objectively unreasonably for you to seek the protection of the state in light of your circumstances, as the agent of persecution is the state. Homosexuality, as noted above, is criminalized throughout Uganda. Additionally, the country evidence indicates that authorities do not provide adequate protection or access to justice to victims of crimes who are LGBTQ and police themselves are often seen as principal violators of rights against this community.
Internal Flight Alternative
[28] I have examined whether a viable Internal Flight Alternative exists for you. Based on the evidence on file, I find that you face a serious possibility of persecution throughout the entirety of Uganda. Again, the laws condemning same-sex acts and relationships are consistent throughout the country and there is no part of Uganda where you would not face persecution or where you would be able to live freely. I therefore find there is no Internal Flight Alternative available to you.
CONCLUSION
[29] In light of the preceding, I conclude that you are a refugee pursuant to Section 96 of the Immigration and Refugee Protection Act and accordingly I accept your claim.
[30] COUNSEL: Thank you very much, Madam.
[31] CLAIMANT: Thank you very much, Madam Member.
[32] MEMBER: You are very welcome. Thank you, Madam Interpreter for being available and being patient here today. It is appreciated. Thank you, Counsel. And Mr. XXXX, I wish the best for your future.
[33] CLAIMANT: Thank you very much, Madam Member.
[34] MEMBER: And have a great day, everyone.
[35] INTERPRETER: Thank you.
[36] CLAIMANT: I thank you.
[37] MEMBER: Bye.
———- REASONS CONCLUDED ———-