Citation: 2022 RLLR 80
Tribunal: Refugee Protection Division
Date of Decision: October 5, 2022
Panel: Avril Cardoso
Counsel for the Claimant(s): El-Farouk Khaki
Country: Uganda
RPD Number: TC1-18034
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the start of the oral decision.
[2] This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, a citizen of Uganda. You are claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act.
DETERMINATION
[3] In coming to my decision, I have considered and applied the Chairperson’s SOGIESC Guidelines. I find that you are a Convention refugee for the reasons which follow.
ALLEGATIONS
[4] To briefly summarize your allegations, you allege you came to Canada in XXXX 2019 and spent time with your cousin, who is a lesbian, and connected with the LGBT community in Canada. You are being forced to marry FZ against your will. After returning into Uganda, you came to Canada again in XXXX 2020 to gain a reprieve from your family’s opposition to your involvement with the LGBT community in Canada. After hearing that your family has reported yourupportt for the LGBT community to the police in Uganda, you decided to claim protection.
Identity
[5] I find that you have established your identity as a citizen of Uganda through your testimony and your passport, birth certificate, and education documents contained in Exhibits 1 and 5.
Nexus
[6] I find that there is a link between what you fear and the Convention ground of particular social group of bisexual women, and your claim is therefore assessed under section 96.
Credibility
[7] I have found you to be a credible witness and I therefore believe what you alleged in support of your claim. Your overall testimony was spontaneous, detailed, forthright, and materially consistent with your narrative. You elaborated with additional details without apparent hesitation and without embellishment. You have established the death of your parents based on your narrative and supporting documents, specifically their death certificates contained in Exhibit 5. I find that you are being forced to marry FZ by your uncle, EN, one (1) of your guardians. You testified that your uncle, EN, is specifically forcing you into a marriage, as he and your family believe you are a lesbian and feel that this is shameful to your family and its name.
[8] You submitted evidence of his identity as well as that of your uncle, who I accept is a prominent and high-ranking member of the military. These are contained in Exhibit 5.
[9] I find that you are bisexual. I asked you to explain why you did not disclose your sexual orientation in your original narrative, and you said you felt scared and uncomfortable even to disclose to your Counsel. You testified that since you were orphaned, you were raised in a very strict environment and always silenced. You spoke about escaping from your paternal guardians to some of your mom’s relatives to find solace and support at least for a week or two (2). You testified that you attended boarding school as a child and felt drawn to cute girls and would do anything to befriend them. You said you could not express or discuss your feelings due to the anti-gay culture in Uganda. You testified that when you came to Canada to visit with your lesbian cousin, you learned more about gay relationships and how normal they were. You said that your cousin had no support in Uganda and could not even return for her mother’s funeral, and you wanted to be her social support, so she would know that you got her. You said you wanted to educate coworkers and others in Uganda about LGBT people and help to normalize fears about this community and persuade others that they were normal. You testified — your testimony about stories you heard from gay people from Uganda was most compelling. You said you always had a pull towards the gay community, and until you spent time in Canada, you did not feel confident in talking about your feelings. You testified about meeting someone at a house party last year and described your same-sex relationship. You said you are currently dating.
[10] You have submitted extensive documents corroborating your participation in various LGBT events in Canada, which are contained in Exhibits 5 and 7. In assessing your credibility, including the recent update to your narrative in which you declared that you are bisexual, and guided by the SOGIESC guideline, section 3.1 states that an individual’s self awareness and self-acceptance of their SOGIESC may present as a gradual or non-linear process. Section 3.3 says that many SOGIESC individuals conceal their sexual orientation in their home country out of mistrust, fear, and experiences of stigmatization, and section 6 cautions Members not to rely on stereotypes or incorrect assumptions in adjudicating cases by, for example, expecting that SOGIESC individuals would be comfortable disclosing this aspect of their identity to others in their lives, including legal Counsel. I therefore find that your subjective fear is established by your credible testimony and supporting documents.
Objective Basis
[11] I find that the country condition evidence supports your subjective fear as being objectively well-founded on a balance of probabilities. The US Department of State report in 2.1 writes that significant human rights issues included lack of investigation of and accountability for gender-based violence, including forced marriage, and crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer or intersex persons, which effectively went unpunished due to impunity. LGBTQI+ persons face discrimination, legal restrictions, harassment, violence and intimidation. This source reports that the government severity restricted freedom of expression or peaceful assembly rights for those speaking out in support of LGBTIQI+ (sic) persons. The UK – sorry, a UK Home Office report at 6.4 writes that Uganda is predominantly a Christian country where same-sex relationships are against the teachings of the church and homophobic views are widespread. Negative political rhetoric, particularly during election periods, has fueled homophobic sentiment, while societal acceptance of LGBTI persons is low. There is some evidence that attitudes are softening. A Response to Information Request at 5.6 writes about the existence of forced marriages. There are no laws about forced marriages. This source mentions police protection being available to women and girls. However, discrimination against women continued to be widespread, especially in rural areas. Many customary laws discriminate against women in marriage (inaudible) divorce and inheritance. Your Counsel has also submitted country condition evidence, which is consistent with the Board’s National Documentation Package, and can be found at Exhibit 6 and 8.
State Protection
[12] I have considered whether state protection would be available to you if you returned to your country, and I have concluded that it is not for the following reasons. As the state is the agent of persecution, it is clear that state protection would not be reasonably forthcoming. Same-sex sexual acts and same-sex marriages are illegal for both men and women. Since 2014, there has been a repeated pattern of attempts by parliamentarians to tighten the laws affecting LGBTI people, including calls to introduce a death penalty for same-sex sexual acts. This is in 6.4. Human Rights Watch at 6.13 reports that two (2) mass arrests on (inaudible) grounds based on presumed sexual orientation or gender identity were conducted and the detainees were subjected to abuse. LGBT activists have also been arrested because of their work in the LGBT community. I find it would be objectively unreasonable for you to seek the potential of the state in your particular circumstances, where your family believes you may be a member of the LGBT community and support them.
Internal Flight Alternative or IFA
[13] I have also considered whether viable IFA exists for you, as the state is the agent of persecution and as it has effective control of all its territory, and in the absence of adequate state protection and warrants for discrimination against women and the LGBT community, it is clear that there is no viable IFA.
CONCLUSION
[14] Based on the totality of the evidence, I find you to be a Convention refugee, and I accept your claim.
[15] This concludes the oral decision.
——— REASONS CONCLUDED ———