TC0-09833

RAD File / Dossier de la SAR: TC0-09833 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 14, 2021 Date de la décision Panel J. Pollock Tribunal Counsel for the person who is the subject of the appeal Michael F Loebach Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for granting the appeal of XXXX XXXX (the Appellant) and recognizing him as a Convention refugee. [2] The Appellant is a citizen of Uganda. He alleges a fear of persecution based on his anti-government political opinion and as a member of the Forum for Democratic Change (FDC). He alleges that he was detained and interrogated about his political opinion during an anti-government protest in 2006 and that he was threatened based on his political opinion. In 2008, he alleges that he was kidnapped and seriously injured. He also suspects that his home was burned down by government agents in 2012. He alleges that a summons was issued for his arrest for funding the opposition. He fled to the United States (US) to seek asylum, but his claim was denied. In 2018, he travelled irregularly to Canada and initiated his refugee claim. He alleges that he has continued to publicly oppose the Ugandan government at protests in the US and Canada. [3] The Refugee Protection Division (RPD) found the Appellant's claim not credible. However, the RPD accepted that the Appellant was arrested at an anti-government protest in Uganda in 2006 and that he has attended multiple anti-government protests in the US and Canada.1 The RPD denied the Appellant's claim, finding that he does not face a serious possibility of persecution or a subsection 97(1) risk upon return to Uganda based on his political profile. The Appellant argues that the RPD decision is incorrect. He has not filed any new evidence on appeal, and I have no jurisdiction to hold a hearing.2 [4] My role is to look at all the evidence and decide if the RPD made the correct decision.3 While I agree with the RPD that there are material credibility concerns in the Appellant's case, I find that he has credibly established his anti-government political opinion, including his anti-government protests in Uganda, the US, and Canada. I agree with Counsel that political persecution in Uganda is increasing. Based on my independent assessment of the entire Record, including the most recent National Documentation Package (NDP) for Uganda, I find that the Appellant faces more than a mere possibility of persecution based on his anti-government political opinion and commitment to public protest. I further find that he is a Convention refugee. DECISION [5] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. ANALYSIS [6] Counsel argues that the RPD's decision is incorrect for two reasons. First, the RPD erred in assessing the Appellant's credibility. Second, the RPD erred in finding that the Appellant does not face a serious possibility of persecution based on his political profile and protest activities. I accept Counsel's second argument. Therefore, I need not address the first. Even if each of the RPD's credibility findings are correct, the RPD did not dispute the Appellant's allegation that he is a political opponent who is committed to public protest. The Appellant's anti-government political opinion and public protest is credible [7] The RPD accepted that the Appellant was arrested at an anti-government protest in Uganda in 2006 and that he has attended multiple anti-government protests, including in the US and Canada.4 Having independently assessed the evidence, I find that the RPD was correct to accept this evidence as credible. In addition to his own detailed and compelling testimony, the Appellant provided multiple support statements, newspaper reports, electronic messages, and photographs to corroborate these allegations.5 This evidence indicates that the Appellant has actively and publicly opposed the Ugandan government for more than fifteen years across in three countries. His numerous electronic messages with other political opponents demonstrate his continuing commitment to opposing the Ugandan government. The RPD did not identify any credibility concerns regarding the genuineness of the Appellant's anti-government political opinion or commitment to public protest, and I have no reason to find otherwise on appeal. Counsel argues that the Appellant's political profile, when considered in light of the country condition evidence, is sufficient to establish the Appellant's forward-facing risk. I agree. [8] The credibility concerns raised with the Appellant's testimony relate to whether some of his allegations of political persecution have been credibly established, including his submission of a non-genuine medical report and the provenance of a party card from Uganda. It may be that those documents are not genuine, and that the events that they are connected to are not credible or did not occur as the Appellant alleges, or at all. However, even without these documents and allegations, the Appellant has credibly established his anti-government political opinion and commitment to public protest. This is sufficient to establish a forward-facing risk. [9] Freedom of expression is a core human right.6 The Appellant cannot be required to refrain from openly expressing his anti-government political opinion upon return to Uganda in order to avoid persecution. Given his commitment to publicly opposing the Ugandan government, and the treatment of political opponents and protesters in Uganda, I am satisfied that he faces a serious possibility of persecution upon return. The Appellant has established his refugee claim against Uganda [10] Having conducted my own assessment of the Record, including the September 2020 NDP for Uganda, I find that the Appellant faces a serious possibility of persecution based on his political opinion and commitment to public protest. I find that his fears are well-founded and that he does not have access to state protection or a viable Internal Flight Alternative (IFA). The Appellant's claim against Uganda is well-founded [11] The US Department of State report indicates that significant human rights issues in Uganda include "unlawful or arbitrary killings, including extrajudicial killings; forced disappearance; torture; and arbitrary detention by government agencies."7 This includes the detention of political prisoners, "the worst forms of restrictions on free expression", "substantial interference with the rights of peaceful assembly", and restrictions on political participation."8 [12] Ugandan authorities have detained numerous opposition politicians and activists on politically motivated grounds, and they have used torture against those held in detention.9 On May 30, 2020 the Ugandan police fired teargas and live ammunition into the air to disperse a protest by political opponents.10 Those targeted were not just political leaders but also low level opposition supporters. This continues a pattern of excessive force by police officers in response to anti-government rallies, including through the use of live ammunition and hand grenades.11 Opposition offices have been raided with supporters arrested and taken to undisclosed locations.12 Political opponents have been killed during protests and they have also died while in detention.13 [13] Counsel has presented multiple newspaper reports about the increasing surveillance of Ugandans in the diaspora who publicly oppose the government.14 While many of those targeted are high level political leaders, the evidence also indicates that political opponents who are active and public in their opposition efforts abroad may also be at risk. This would include the Appellant, given his years of public protest in the US and Canada. The Ugandan government is also known to use surveillance technology to monitor and target political opponents, including through the use of Pegasus spying software.15 [14] Having considered the objective evidence, including the rise in political persecution in Uganda, I find that the Appellant's claim is well-founded. I find that he faces more than a mere possibility of persecution as a political opponent committed to public protest in Uganda. Neither adequate state protection nor IFA are available to the Appellant [15] The Ugandan government is "reluctant to investigate, prosecute, or punish officials who committed human rights abuses, whether in the security services or elsewhere in government" and impunity continues to be a serious problem.16 It would be objectively unreasonable for the Appellant to seek the protection of the state because it is the state that he fears. The Ugandan government exercises its power throughout the whole of its territory. As such, the Appellant does not have a viable IFA anywhere in Uganda. CONCLUSION [16] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "J. Pollock" J. Pollock April 14, 2021 Date 1 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 15, 33. 2 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 110(6). 3 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 4 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 15, 33. 5 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 126-128, 131-140; Exhibit 7, at p. 150; Exhibit 8, at pp. 167-171; Exhibit 10, at pp. 204-209; Exhibit 15, at pp. 547-593. 6 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), at Article 19; UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, at p. 171, at Article 19. 7 Exhibit RAD-1, National Documentation Package (NDP) for Uganda (30 September 2020), Item 2.1, at p. 1. 8 Exhibit RAD-1, NDP for Uganda (30 September 2020), Item 2.1, at p. 1. 9 Exhibit RAD-1, NDP for Uganda (30 September 2020), Item 2.1, at pp. 3, 10; Exhibit RPD-1, RPD Record, Exhibit 8, at pp. 182-183. 10 Exhibit RAD-1, NDP for Uganda (30 September 2020), Item 2.1, at p. 15. 11 Exhibit RAD-1, NDP for Uganda (30 September 2020), Item 2.2, at p. 92; Item 2.3, at pp. 2-3; Item 2.4, at p. 5; Item 4.8, at pp. 51, 62, 70; Item 4.9, at p. 2; Item 4.12, at p. 2-4, 7; Item 11.1, at p. 2; Exhibit RPD-1, RPD Record, Exhibit 8, at pp. 184-186; Exhibit 14, at pp. 524-525. 12 Exhibit RAD-1, NDP for Uganda (30 September 2020), Item 4.8, at p. 46. 13 Exhibit RAD-1, NDP for Uganda (30 September 2020), Item 4.14, at p. 3; Item 4.8, at pp. 56-57. 14 Exhibit RPD-1, RPD Record, Exhibit 14, at pp. 515-516, 519-520. 15 Exhibit RAD-1, NDP for Uganda (30 September 2020), Item 1.4, at p. 11; Item 2.1, at pp. 12-14; Item, 4.6, at pp. 3-5; Item 11.2, at p. 19. 16 Exhibit RAD-1, NDP for Uganda (30 September 2020), Item 2.1, at p. 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: TC0-09833 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français