Citation: 2019 RLLR 145
Tribunal: Refugee Protection Division
Date of Decision: January 8, 2019
Panel: S. Charow
Counsel for the Claimant(s): Jonathan E Fedder
Country: Uganda
RPD Number: TB8-04402
ATIP Number: A-2021-00256
ATIP Pages: 0000164-000167
DECISION
[1] MEMBER: This is the decision for [XXX] File TB8-04402. I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. In making this decision, I have considered the guidelines for sexual orientation.
[2] 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.
[3] I find that you are a Convention refugee for the following reasons.
[4] The allegations of your claim can be found in your Basis of Claim Form at Exhibit 2. In short, you allege persecution as a member of a particular social group, namely that you are in danger of being harmed because of your identity as a gay Ugandan man as same-sex sexual activity has been criminalised in Uganda.
[5] You fear both the police and your community as you have alleged that you have been previously sought by the police after being attacked by a homophobic mob.
[6] Your personal identity as a citizen of Uganda has been established by your Ugandan passport. I therefore find on a balance of probabilities your identity and country of reference have been established.
[7] In terms of your general credibility, I have found you to be a very credible witness, and I therefore accept what you have alleged in your oral testimony and in your Basis of Claim form. You testified in a straightforward manner about your fears without any embellishment, and there were no inconsistencies that went to the core of the claim that were not explained.
[8] Your testimony was spontaneous including being able to provide details about how you first began to understand your sexual orientation as a youth. You were able to give specific detailed testimony about your emotions and the difficulties you face keeping your feelings a secret after seeing homophobic reactions from the community, your school, your church and your family.
[9] You gave extremely detailed testimony about your current partner [XXX] (PH), including how the relationship developed, what attracted you to [XXX] (PH), and how you were able to keep your relationship a secret as a whole. Your testimony regarding how your sexual orientation was exposed was also descriptive, consistent and in line with the documentary evidence you provided.
[10] As well today, you showed me that you have been in ongoing contact with [XXX] (PH) since you came to Canada, and you were able to show me your communication with him after he had fled to a remote village in Uganda. You showed me your messages on WhatsApp on your phone dating back to February 2018 shortly after you had left Uganda.
[11] When reading through the months and months and months worth of messages, I noted that you both refer to each other with terms of endearment and that the messages were varied, plentiful and continuous up to this time. I saw that he had wished you luck on your hearing today.
[12] I find that the messages that you showed me were authentic as I saw them on your phone, and I saw how far back they dated and overall consistent with the nature of the relationship that you have alleged.
[13] As well in support of your claim, you provided documentary evidence. I note a medical assessment completed here in Canada, which states that you have injuries consistent with the assault that you had alleged in Uganda. I noted a detailed letter from your same-sex partner, again, very detailed, consistent with your allegations and very much in line with the nature of the relationship that you alleged.
[14] I noticed that you provided photographs of you and your same-sex partner as well as a letter from your uncle, the person who helped you escape Uganda and who provided support for you while you were in hiding. As well, I see that you have provided confirmation of money transfers showing that you have been sending money to your same-sex partner in Uganda. These documents can be found in Exhibit 6 through 8.
[15] I am therefore satisfied that the events have occurred as alleged and that you would face persecution at the hands of either the Ugandan government or your community should you return to Uganda. I find that you have established your subjective fear.
[16] I find that there is a link between what you fear and one of the five Convention grounds, specifically that as a gay man you are a member of a particular social group because of your sexual orientation. Therefore, your claim has been assessed under Section 96 of the Immigration and Refugee Protection Act.
[17] I further find that you have an objective basis for your fear because of the documented conditions for Uganda as per the evidence in Exhibit 3, which is the National Documentation Package for Uganda. I specifically note Item 6.1 which states that Ugandan law criminalises same sex sexual acts. The law in Uganda further restricts the access of sexually nonconforming individuals to protections against discrimination that are available to other Ugandans.
[18] I also note that there is further criminalisation of same sex activity under the Penal Code which prohibits unnatural offences and acts of gross indecency, and that homosexuality is rejected by most Ugandans on the basis of tradition, culture, religion and moral values. Many in Uganda perceive homosexuality as “un-African and un-Christian” or inspired by western practices, and it is also presented in connection to wider threats to “authentic” African values and traditions.
[19] Therefore, in considering all of this information, I find that your subjective fear has an objective basis. I find that you have a well-founded fear of persecution due to your sexual orientation.
[20] I further find that Stare protection would not be reasonably forthcoming in your case as per the evidence already discussed. As per Item 6.1 of the National Documentation Package at Exhibit 3, samesex sexual activities are criminalised. The same Item also notes that many people who identify as a sexual minority are often unable to receive police protection from abuse by non-State actors for fear of being arrested or ignored or further abused. As such. I find that there is clear and convincing evidence that State protection would not be available to you nor would it be reasonable for you to seek such protection.
[21] Given the conditions discussed, I further find that there would be a serious possibility of persecution anywhere in Uganda as homosexuality is criminalised throughout the country and societal attitudes as discussed are consistently homophobic throughout the country.
[22] As the test for an internal flight alternative fails on the first prong, I find that there is no viable internal flight alternative for you anywhere in Uganda.
[23] Based on the totality of the evidence, I find the claimant to be a Convention refugee. Your claim is therefore accepted.
[24] So, this will conclude today’s hearing. I would like to thank everyone for their participation.
[25] Thank you, sir. Thank you counsel.
[26] COUNSEL: Thank you madam member.
—REASONS CONCLUDED—