2022 RLLR 93

Citation: 2022 RLLR 93 
Tribunal: Refugee Protection Division
Date of Decision: September 15, 2022
Panel: Diane Hitayezu-Fall
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Uganda
RPD Number: TC1-00149
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A

DECISION

[1]        MEMBER: Start the recording. Sorry. It took me longer than what I expected. So during the break I was able to go over my notes and I have reached a decision and I will give you a decision and the reasons for the decision. And I think you will be able to (inaudible). 

[2]        So as I said, I have considered your testimony and the other evidence before me and I will give you my decision orally and the reasons for my decision. This will be my decision in the refugee protection claim of XXXX XXXX. You allege that you are a citizen of Uganda and you are seeking protection under section 96 and paragraph 97(1) of the Immigration and Refugee Protection Act. So in rendering my decision, I have considered the Chairperson’s Guideline for gender consideration in proceedings before the Immigration and Refugee Board and I have also considered and applied the Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression and sex characteristics. 

[3]        I find that you are a Convention refugee as the evidence before me establishes that you would face a serious possibility of persection in Uganda due to your membership in a particular social group as a lesbian woman in Uganda. 

[4]        So I will tell you how I assessed the evidence before me and I will start with the allegations you made. The details of your allegations can be found in Exhibit 2. They are in the narrative you have included in your Basis of Claim form. So you allege that you are a citizen of Uganda and you allege that you fear persecution based on your sexual orientation. You identify as a lesbian woman. You allege that you have been mistreated, that you have been forced to marry a man much older than you who already had two (2) wives. You allege that you have been sexually assaulted by a police officer when you were arrested and detained for same sex activities. You allege that the community in general — you fear the community in general, the Uganda authorities, the police and some members of your family. You allege that you have have been separated from your girlfriend and you still do not know where she is. You indicated that your aunt, who helped you escape, continues to get threats. You allege that if you return to Uganda, you will be jailed and there will be no hope for you to be who you are and live as a woman who is attracted by women. I have examined your claim under section 96 of the Immigration and Refugee Protection Act, as I find that the risk you described is linked to at least one (1) of the grounds prescribed in section 96, specifically, membership in a particular social group as a lesbian woman in Uganda. 

[5]        I verified your identity and I find that your identity as a national of Uganda is established by the documents you have provided. You have provided a valid passport from Uganda and I have a certified copy of that document in Exhibit 1. And you have provided school documents from Uganda. 

[6]        So as I had told you at the beginning of the hearing, when you testified I verified the credibility and verified the declarations you have made in your forms. So as I already mentioned, I was guided by the Chairperson’s Guidelines 4 and 9. And in assessing your claim I was mindful of of your sexual orientation and the fact that you are a woman facing some challenges in Uganda and you alleged to have gone through forced marriage. In assessing your allegations I was also mindful of the presumption that helps to approach the assessment of refugee claims. So when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness. And I found in your case that you testified in a straightforward manner except at the beginning of the hearing you were not answering the questions but as we progressed you started answering the questions that were asked and not telling whatever you wanted to say. And I have found that there were no relevant inconsistencies in your testimony or contradictions between what you testified to and the other evidence before me. No serious discrepancies were left unexplained. Everything was, in my opinion, explained satisfactory. 

[7]        So you explained what you meant when you said that you were married to a man. You explained that you were taken there but did not stay. You found a way to escape. This clarified some passages of your narrative. It explained how you were sure when you got pregnant that it was not his child. And I find that your testimony and the other evidence before me establishes the allegations you have made that you have been harassed, targeted for exclusion from your community, you and your aunt. You had to move out of your usual place. And your allegation that you have been forced to marry a man chosen by your father and the allegation that you have been arrested and sexually assaulted is — those allegations I find your testimony and the evidence is established on a balance of probabilities. And I have found your testimony corroborated by the documents you have provided. And those documents are in Exhibit 6 and 7. I have reviewed these documents and I have no serious concerns about their authenticity. And you have provided testimonies from friends and family members, including your aunt. You have high school friends, members of the community who shared what they know about your sexual orientation and how you have been treated in the community and by authorities. Your aunt, XXXX (ph), who supported you, gave you a place to stay and encouraged you to complain when you were assaulted and helped you to escape and come to Canada has provided testimony. I think I received two (2) letters of support. You provided a copy of one (1) of the threatening notes sent to your aunt’s place, XXXX, threatening to harm you and her, Exhibit 7. You provided documents from the local authorities. These documents show that you were not wanted in your community. They wanted you to move out. And I note that there is testimony from one (1) of the local administrator who tried to protect you but says that he could not because the people in the community did not approve of your behaviour, the same sex relationship and the activities you were involved in. That is in Exhibit 7. It is among the personal documents you have provided. And you provided letters of support from LGBTQ organization in Canada in pictures showing you participating in activities in Toronto in Exhibit 7. And you have provided medical professional and social workers’ testimonies and reports. These professionals have assisted you in settling in Canada and they have been providing healthcare to you. So when all of these documents are considered together with your testimony, I find that you have established your sexual orientation as a lesbian on a balance of probabilities. And as such, I find that you have been a credible witness and I accept that you have — what you have alleged in your Basis of Claim I accept it as true on a balance of probabilities. And I find that you have established a subjective fair to return to Uganda being a lesbian woman whose sexual orientation has been exposed as you explained today. 

[8]        So in continuing assessing your claim under section 96, I had to verify whether your subjective fear is well-founded. The other sufficient objective evidence establishing you would face more than a mere possibility of being persecuted based on your sexual orientation if you return to Uganda. I have verified whether the treatment you would be subject to would amount to persecution and I have reviewed the objective evidence. And I find that you would be subjected to a treatment that raises to the level of persecution. In fact, the objective evidence indicates that same sex activities are criminalized in Uganda. Homosexuality is a crime in Uganda. Section 145 and 146 of the Ugandan Penal Code provides seven (7) year imprisonment sentence. Consensual same sex activities in public or in private are criminalized. And in Item 2.1 the US Department of State report that consensual same sex sexual conduct is criminalized in Uganda and this report confirms that LGBTQ person face discrimination and illegal restrictions, harassment, violence, intimidation and authorities perpetrate — during the period covered, authorities had perpetrated and they tolerated violence against LGBTQ individuals in Uganda. We have many documents in section 6 of the National Documentation Package for Uganda. I will cite some. Item 6.2 indicates that there is rampant social homophobia in Uganda. And we have Item 6.3 which is a document — a 2021 document and it says that the government is hostile to LGBTQ activities and these behaviours aggravate violence against LGBTQ members. And these documents says that violence against LGBTQ is well-documented and we find many examples in that document, 6.3, that Uganda’s laws and policies do not specifically protect LGBTQ persons against violations within the criminal justice system and LGBTQ persons in police detention suffer violations linked to their sexual orientation. LGBTQ persons in prison, they face discrimination and abuse of their dignity. And then we find information that several cases of people subjected forced anal examination (inaudible) engagement in prescribed consensual same sex acts have been documented. This is for gay individuals. Item 6.4 we find indication that there have been human rights violations against LGBTQ persons and including acts by police and other state agencies. LGBTQ persons who have been arrested or detained reported being subjected to ill treatment, including humiliation, physical and sexual assault. 

[9]        And in your case, you have testified and we have information that you have been assaulted during detention. And I have another document that talks about the situation, document 6.5. Some of the information we found in this document is that there were a few instances of protection of the rights of LGBTQ persons by the police. In your case, we — I note also that when (inaudible) Counsel indicated that he tried, not everybody is against LGBTQ, obviously, in  Uganda. But in the same document, we see that they say that the police — the Ugandan police force committed the most violations against the LGBTQ persons. They were responsible for 89 out of the total 398 violations that were recorded. And they say that the most violated rights were the right to equality and the freedom from discrimination. There are more information — more details in the National Documentation Package in section 6. So I find that the objective evidence before me indicates that sexual minorities are at risk of persecution at the hands of the society in Uganda but also at the hands of the authorities in Uganda, especially as same sex relationships and activities are criminalized. From that objective evidence we learned that victims do not have access to justice and they suffer human rights violations at the community and at the hands of authorities. So I find that you would face a serious possibility of persecution in Uganda if you return. And I find that your fear to return to Uganda having been exposed as a lesbian is well-founded. 

[10]       So before I concluded, I also had to verify whether you would get adequate state protection and whether you would have a viable internal flight alternative in Uganda. And I find that the protection will not be reasonably forthcoming for you. You have tried, before your aunt helped you bring to justice — try to bring justice that police officer who assaulted you. And you testified the case did not go far. I find that as state agents are among agents of persecution and sexual — same sex activities are criminalized, it would not be reasonable to expect you to approach authorities for protection. And approaching them when same sex activities are criminalized would put you at more risk. You would be at risk to be persecuted. You may be sent to jail where you would face mistreatment. I find that you have rebutted the presumption that states are capable and willing to protect their citizens. I think that there is no adequate protection for you in Uganda as a lesbian woman. 

[11]       I assessed whether there is a viable flight — internal flight alternative for you in Uganda. And I find that there is none as I find that there is a serious possibility of persecution for you throughout Uganda. The laws regarding homosexuality apply uniformly throughout Uganda so there is no place in Uganda where you can live and be safe from the authorities and society homophobia. I find that you face a serious possibility of persecution everywhere in Uganda. And also I note that Guideline 9 reminds us that a person should not have to hide their sexual orientation to be safe. So I find you have no viable internal flight alternative in Uganda. 

[12]       And in conclusion, I find that you are a Convention refugee and I accept your claim. 

[13]       CLAIMANT: Thank you so much, Madam Member.

[14]       MEMBER: You are welcome.

——— REASONS CONCLUDED ———