Gay asylum seeker fears for life if deported
Lawyer says new evidence can’t be heard because rules forbid appeal, forcing her to return to Uganda
Five weeks after her asylum claim was denied, Yvonne Niwahereza Jele says, she got a text from an angry uncle in Uganda who had learned — from a local newspaper — that she is gay and wanted by police.
That news story — an item about her in the July 17 edition of the Ugandan tabloid hello!, under the headline “City Socialite Hunted Over Lesbo Links” — came too late for the asylum seeker.
Now in Toronto, Jele, 29, believes the article may be the best proof she has to support her claim that she had been jailed, tortured and persecuted in Uganda for being gay.
But she can’t introduce that new evidence. Under changes to immigration rules made by the former Conservative government, she isn’t eligible to appeal the refugee board’s decision.
Immigration Minister John McCallum is the only person who can grant her a reprieve from being sent back to Uganda, a country where homosexuality is outlawed and punishable by life in prison, according to the International Gay and Lesbian Human Rights Commission. Border enforcement officials this week denied her request to defer her deportation, scheduled for Saturday.
A judicial review application with the Federal Court of Canada on the refugee board’s decision is pending. Even if the court hears the case, it can only review the decision on its legal merits — and not on new evidence such as the news article that outed Jele.
“Please give me protection,” Jele pleaded in an interview with the Star. “I have nowhere to go. People saw me in the paper. They are going to kill me. I just want a chance to live an ordinary life and have some freedom.”
Proving one’s sexual orientation to a refugee judge remains a challenge for such claimants, said immigration lawyer Michael Battista, who chairs the Rainbow Railroad, a Toronto group that helps LGBTQ individuals facing persecution abroad.
“The verification of someone’s sexual orientation and identity is so critical to their claims. Their cases stand or fall based on the decision-makers’ belief in their membership of the community,” said Battista,
“LGBTQ claimants have no membership card or physical appearance to prove (their sexual orientation).” MICHAEL BATTISTA RAINBOW RAILROAD CHAIR
who has represented thousands of gay and lesbian refugees in his 25-year career.
“Unlike claimants on other grounds such as race, religion and political (affiliation), LGBTQ claimants have no membership card or physical appearance to prove (their sexual orientation). They are an invisible minority.”
In her asylum claim, Jele said she had been in a nine-year closeted relationship with her high school girlfriend until 2008, when they were caught kissing by her father, who became enraged and forced her to marry a supermarket manager.
Jele said she continued her secret relationship with her girlfriend, meeting her after work and on weekends in cheap hotels. But one day in 2013, her husband caught the pair together at their house. He called police to have her arrested, she said in her asylum claim.
Jele, in her oral testimony, told her refugee hearing that she had been raped and abused by her husband, including incidents of gang rape instigated by her spouse. Yet, she said she did not seek medical attention after the alleged assaults.
The couple had two daughters together, but Jele said her parents took them away so she “wouldn’t turn them gay.”
The refugee tribunal dismissed Jele’s allegations of abuse.
“The panel finds the claimant’s account of the years of sexual and physical abuse lacking in credibility,” it said in its decision.
When reached by email in Uganda, a man who identified himself as Jele’s husband, Patrick Jele, refused to comment on the abuse allegations. “What I do with my wife is my business, not yours,” he wrote.
“I want to understand what kind of a woman just runs away without informing her husband. You, the people supporting her in her lesbian ways, should be ashamed,” he told the Star.
“This woman has two children and should come back and be a proper woman. I need to deal with my wife and I urge you to tell me where I can or how I can contact her.”
Jele said in her claim that she was jailed and beaten with bamboo sticks for three days after her arrest in 2013 and has scars on her right shoulder and chest. The Ugandan newspaper article noted that after her release, she was given a “caution in an effort to correct her from her lesbian tendencies.”
Earlier this year, Jele said she had the opportunity to go to a travel conference in Philadelphia for work and did not return home to her marketing job in Kampala. After a short stay at a refugee shelter in Detroit, she said, she crossed the border with the help of her brother in Canada and sought asylum.
In June, the refugee board rejected Jele’s asylum bid because of “inconsistencies and contradictions” in her claim, including the dates when she last saw her girlfriend and when she said her husband found out about the affair.
The board also questioned the authenticity of an arrest warrant issued by a court in Nakawa, Uganda, in March and included with her claim, noting the document “contains few security features and no letterhead.”
According to the arrest warrant filed with the Federal Court of Canada in the judicial review of the asylum rejection, Jele faces charges of committing unnatural offences and indecent practices “against the order of nature.”
The board also took issue with the fact her brother in Canada wrote her a letter of support and accompanied her to the refugee hearing, but refused to testify on her behalf. Jele noted her brother is a “born-again Christian” and chose not to testify. Her brother did not respond to the Star’s interview requests.
“The panel determines that, for reasons of credibility, the claimant has not satisfied the burden of establishing a serious possibility of persecution on a Convention ground,” the board concluded. “The panel rejects her claim.”
Jele’s lawyer, Aadil Mangalji, said his client is ineligible to appeal to the refugee appeal tribunal because she came through the United States — a safe third country — for her family connection in Canada. (Under the Safe Third Country Agreement between Canada and the U.S., refugee claimants are required to request refugee protection in the first safe country they arrive in.) That excluded her from an appeal.
Hence, she also faces a one-year bar from seeking a pre-removal risk assessment or applying for permanent residency on humanitarian grounds.
“The new evidence cannot be put before the court because the record on a judicial review application is limited to what was before the board,” Mangalji said.
“Given all of these factors, the immigration minister is the only party that can now provide remedy and prevent this individual from being sent back to severe hardship,” added the lawyer, who has written to McCallum’s office in a plea for leniency.
Both the minister’s office and Immigration, Refugees and Citizenship Canada refused to comment on Jele’s case, since it is before the federal court.
“Many of the reforms to the asylum system implemented in 2012 were designed to provide faster protection to those claimants who required refugee protection while allowing for the speedier removal from Canada of claimants found not to be in need of protection,” said spokeswoman Lindsay Wemp.
“Limiting access to the refugee appeal division for some failed claimants was designed to further Canada’s objective of providing a streamlined refugee determination process.”
“The new evidence cannot be put before the court because the record on a judicial review application is limited to what was before the board.” AADIL MANGALJI JELES’S LAWYER