2022 RLLR 50

Citation: 2022 RLLR 50
Tribunal: Refugee Protection Division
Date of Decision: September 16, 2022
Panel: Jonathan Rasool
Counsel for the Claimant(s): Jonathan E. Fedder
Country: Uganda
RPD Number: TC2-09589
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division for XXXX XXXX. 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. You alleged that you fear persecution and a risk to your life in Uganda on the basis of your sexual orientation. I have considered your testimony and the other evidence in this case, I am ready to render my decision orally. In coming to my decision, I have also considered and applied the Chairperson’s Guideline number 9: Sexual Orientation, Gender Identity and Expression and Sex Characteristics. This Guideline assists in assessing the key evidently elements in determining the harm individuals may face due to their sexual orientation or gender identity.

DETERMINATION

[2]       I find that you would face a serious possibility of persecution should you return to Uganda and are a Convention refugee on the grounds of your membership in a particular social group, namely gay men. My reasons are as follows.

Identity

[3]       Your personal identity as a citizen of Uganda has been established by your testimony and the copy of your Uganda passport filed in Exhibit 4.

Credibility

[4]       In terms of your general credibility, I have found you to be credible witness. Your testimony today was direct, responsive to questioning, and at times very emotional. There were no material omissions, inconsistencies, or contradiction between your testimony and your BOC, and other evidence before me that were not reasonably explained.

[5]       You spoke in vivid detail about how you discovered your sexual orientation when you 11 years old at school with JK. You described how you were aroused by seeing other boys naked in the showers, and you realized you were different. You were caught and expelled from school, but nothing came from it, because the school did not want the attention. Your mother never confronted to you about it, because she was hoping you would change. You testified that over the years, you have had relations with other men, but nothing serious until you met your current partner, JL, in 2016. You described the moment you met him and why you were so attracted to him. You were able to spontaneously tell me what you did together, where you met, how you kept it a secret, what you like about his personality, and what it has been like to be apart from them for nearly a year.

[6]       You emotionally recounted the two (2) times you were arrested last year for unnatural sexual offenses, and how traumatic it was spending in time in jail, and the mistreatment you suffered by police and fellow inmates. You explained how you had read a great deal about how accepting Canada is to gay men, and you had been there before, so you thought it would be the best place to flee to.

[7]       I did question you on your subjective fear and your failure to claim in the various countries you had traveled to due to your employment with XXXX XXXX. You credibly explained that you never considered leaving Uganda before that second arrest because you did not have a direct threat. You had a good job and your partner was in Uganda. Over the years, you were able to keep your encounters and relationship secret by blocking family members on social media. Even after your first arrest, you figured that you could work harder at avoiding attention, but it was after you were arrested the second time that you realized you had to leave the country, especially since you suffered more abuse while you were imprisoned. I find your explanation reasonable in that you did not establish a subjective fear until your second arrest.

[8]       Since being in Canada, you have volunteered for LGBTQ groups, attended pride parade, and used apps to meet other gay men, though you have remained faithful to JL. You described being in Canada as totally different from Uganda. You feel supported and safe. Your life is no longer in danger, and you do not have to worry about the police or being judged by society.

[9]       I also note that your claim is supported by supporting documents filed in Exhibit 5, 6, 7, 8, 9, and 10. These include a letter from your partner JL, a letter from your friend in Canada, a letter from your cousin, a statutory declaration from your friend who was your surety for bail when you were arrested for unnatural sex, a letter from your old church condemning your sexual orientation that you received when they excommunicated you, a police summons and release on bond for when you were charged with unnatural sexual offenses, a letter from the LGBTQ neighborhood group confirming your membership, a letter from the chairman of your former local counsel, and letters from XXXX XXXX and XXXX XXXX. The letters from your friends corroborate your allegations that you are a gay man who has been targeted by the police. The letters from your cousin, former church, and local chairman demonstrate that you have been discriminated against by both your family and society. The police documents show that you have been arrested for your sexual orientation, and the letter from your church confirms you were excommunicated due to your sexual orientation. The letters from XXXX XXXX, XXXX XXXX, and XXXX XXXX demonstrate that you have been active in the LGBTQ community in Canada. You testified that your friend who bailed you out of jail helped you collect all the letters from Uganda, and that he took a risk in obtaining the statutory declaration, but he was a well-connected XXXX XXXX and knew of a lawyer who would help him. You said he did this for you because he was a good friend. I find this explanation to be credible, based on your particular circumstances. These documents are reliable because the letters are accompanied by ID, and there is no reason to doubt the authenticity of the police documents. I assign all the documents full weight in corroborating your core allegations as a gay man and who persecuted by your family, society, and the police. Accordingly, on the whole, in terms of your general credibility, I have found you to be credible witness, and I therefore accept what you have alleged in your oral testimony and Basis of Claim form.

[10]     I find that your subjective fear is established by your credible and corroborated testimony.

Objective Basis

[11]     I also find that your claim is objectively well-founded. In making this finding I am referring to the National Documentation Package or NDP for Uganda, which is dated April 29th, 2022, and is filed at Exhibit 3. According to Tab 6.2 of the NDP, the Ugandan Penal Code criminalizes sexual acts between mutually consented people of the same sex. Senior government ministers have engaged in openly hostile rhetoric against the practice and the criminalization of same-sex sexual behaviour. At Tab 2.1 of the NDP, the United States Department of State Country Reports on Human Rights Practices for 2021 for Uganda indicates that there is a penalty of up to life imprisonment for same-sex sexual acts, and that the law does not prohibit discrimination against LGBTQ persons in housing, employment, nationality laws, or access to government services. Multiple sources in the NDP, including Tabs 2.1, 6.2, and 6.4 indicate that Ugandan police are often among the principal violators of the rights of the LGBTQ citizens. The same sources show that homophobic views are widespread across Ugandan society. LGBTQ persons are not only not accepted for who they are, they are often believed to be, or accused to being an intrusion of western values into Ugandan society.

[12]     I find the documentary country evidence supports your allegations of being persecuted by the police and society if you were to return to Uganda. I therefore find that your subjective fear of persecution is objectively well-founded.

State Protection

[13]     In terms of state protection, in this case, the state is one of the agents of persecution that you fear. Based on the objective evidence of the mistreatment of LGBTQ individuals by Ugandan state authorities as described above, I find that you have rebutted the presumption of state protection with clear and convincing evidence based on your personal circumstances and the objective country documentation. I find that adequate state protection would not be available to you in Uganda if you were to return there.

Internal Flight Alternative

[14]     I have also considered whether a viable internal flight alternative exists for you. The country documentation referred to above indicate the situation for LGBTQ individuals and circumstances like yours is the same throughout the country, and that you would face a serious possibility of persecution or a risk to your life anywhere in Uganda, based on your sexual orientation. As such, I find there is no viable internal flight alternative for you in that country.

CONCLUSION

[15]     In conclusion, based on the totality of the evidence and my analysis above, I find that you have established a serious possibility of persecution on a Convention ground in Uganda. I therefore find you to be a Convention refugee pursuant to section 96 of the IRPA, and I therefore accept your claim. Thank you.

——— REASONS CONCLUDED ———