2023 RLLR 188

Citation: 2023 RLLR 188
Tribunal: Refugee Protection Division
Date of Decision: May 5, 2023
Panel: Jonathan Rasool
Counsel for the Claimant(s): Gerald Nsamba
Country: Uganda
RPD Number: TC2-20059
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
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.  In coming to my decision, I have considered and applied the Chairperson’s Guideline 4, women fearing gender related persecution and Guideline 9, sexual orientation, gender identity and expression and sex characteristics.  These guidelines assist in assessing the key evidentiary elements in determining the harm individuals may face due to their sexual orientation or gender identity and history of gender related violence.

Allegations

[2] Your allegations are fully set out in your Basis of Claim form.  In short, you fear persecution and a risk to your life in Uganda on the basis of your sexual orientation.  You also allege that upon learning of your sexual orientation, your father tried to force you to marry a man who sexually assaulted you.  

Determination

[3] I find that you would face a serious possibility of persecution in Uganda and you are a Convention refugee on the grounds of membership in a particular social group, particularly bisexual women.

ANALYSIS

Identity

[4] Your personal identity as a citizen of Uganda has been established on a balance of probabilities by your testimony and a copy of your passport filed in Exhibit 1.

Nexus

[5] To be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion.  The persecution that you allege in this case is due to your sexual orientation.  Therefore, you have established a nexus to a Convention ground and your claim has been assessed under section 96 of the IRPA.

Credibility

[6] In terms of your general credibility, I found you to be a credible witness and therefore believe what you have alleged in your oral testimony and Basis of Claim form.  Your evidence was detailed and consistent both internally and with your documentation.  Throughout the hearing, you were articulate, responsive and forthright.  You were able to elaborate on your narrative and gave explanations to the questions that I asked.  There were no material inconsistencies, contradictions or omissions that were not reasonably explained such that the presumption of truthfulness could be rebutted.  

[7] You spoke in vivid detail about the discovery of your sexual orientation when you were XXXX.  You testified about your first relationship in XXXX school and how you realized you were different from other girls your age.  You provided significant intimate detail about your longest and most recent same sex relationship with CN.  You explained how you met, what you were attracted to about her, how you discovered you had feelings for each other, what you did together in your relationship, the measures you took to avoid being detected and how you were ultimately caught and the repercussions you faced from your family.  I did ask you about some discrepancies between your eligibility intake interview in XXXX 2022 and your BOC and testimony.  You testified that you were very stressed and you did not have the aid of an interpreter.  I find your explanation reasonable and I understand the stress one might go through when being interviewed by an official in a new country.  You also provided amendments to the discrepancies before the hearing and you were forthcoming about the mistakes.  I also note that the discrepancies are not central enough to infer negative credibility inference against your core allegations.  

[8] According to Section 7.1 of the Chairperson’s Guideline 9, an individual’s testimony may in some cases be the only evidence of their SOGIESC.  In spite of this, I note that your claim was also supported by personalized evidence filed in Exhibit 6 and 7.  This evidence includes statutory declarations from your mother, sister and two friends, membership letters from the African Centre for Refugees in Ontario and Rainbow Connect and photos of you at LGBTQ events in Canada.  The support letters corroborate your allegations that you were caught with your same sex partner and arrested as a result.  The photos corroborate that you are active in the LGBTQ community in Canada.  The documents are reliable because there is no reason to doubt their authenticity.  The documents do not have any apparent issues on their face and contain a level of detail one would expect of said documents.  There are no inconsistencies or contradictions between the support letters and your testimony.  I therefore assign them significant weight in corroborating your core allegations.  

[9] I did ask you why you did not have a support letter from CN and you explained that you had not spoken to her since coming to Canada.  You tried calling her but you were unable to get a hold of her.  Your friend in Uganda also tried calling her and even went to her home but she could not find her.  Given that CN was facing the same persecution that you were in Uganda, it is reasonable to understand that she may have needed to go into hiding thus making the communication difficult.  I also note that the affidavits you did provide do mention your relationship with CN.  I therefore do not make any negative inference for the lack of support letter from your ex-partner.

[10] Accordingly, on the whole, in terms of your general credibility, I found you to be a credible witness and I therefore accept what you have alleged in your oral testimony and Basis of Claim form.  The evidence establishes on a balance of probabilities that you are bisexual.  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 August 31, 2022, and is found at Exhibit 3.  According to Tab 6.2 of the NDP, the Ugandan penal code criminalizes sexual acts between mutually consenting people of the same sex.  Senior government administrators have engaged in openly hostile rhetoric against the practice of same sex sexual behaviour.  At Tab 2.1 of the NDP, the United States Department of State Uganda country report on human rights practices for 2021 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 LGBT persons in housing, employment, nationality laws or access to government services.  

[12] 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 LGBTQ citizens.  The same sources show that homophobic views are widespread across Ugandan society.  LGBT persons are not only not accepted for who they are, they are often believed to be or accused of being an intrusion of western values into the Ugandan society.

[13] Item 6.5 of the NDP, a Human Rights Awareness and Promotion Forum report on the treatment of LGBT persons in police detention indicates that they suffer violations due to their sexual orientation.  Police feel the need to show an example to others.  They are taunted, ridiculed and threatened by police, prison officials and other inmates.  I find the documentary country evidence supports your allegations that you would be 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

[14] In terms of state protection, in this case, the state is one of the agents of persecution that you fear.  According to the Chairperson’s Guideline 9, the existence of laws criminalizing non-conforming sexual orientation, sexual behaviours, gender identities or expressions or sex characteristics and the enforcement of these laws by the state may be evidence that state protection is inadequate.  Based on the objective evidence of the mistreatment of LGBTQ individuals by the Ugandan state authorities as described above, I find that you have rebutted the presumption of adequate state protection with clear and convincing evidence.

Internal Flight Alternative

[15] I have also considered whether a viable Internal Flight Alternative exists for you.  The country documentation referred to above indicates a situation for LGBTQ individuals in circumstances like yours.  It is the same throughout the country and that you would face a serious possibility of persecution or risk to your life anywhere in Uganda based on your sexual orientation.  As indicated in the Chairperson’s Guideline 9, it is well established in law that an IFA is not viable if a SOGIESC individual must conceal their SOGIESC in order to live in that location because it would be a denial of human rights.  As such, I find there is no viable Internal Flight Alternative for you in that country.

CONCLUSION

[16] In conclusion, based on the totality of the evidence in 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 accept your claim.

——— REASONS CONCLUDED ———