CAT/C/64/D/615/2014
criminalized and already punishable by a penalty of up to life imprisonment under section
145 of the Ugandan Penal Code of 1950, the new Act stipulates life imprisonment for a
broader range of homosexual conduct, and creates additional crimes with up to seven years’
imprisonment for those advocating or supporting gay rights. 13 Canada recalls that the
United States Department of State’s 2013 human rights report on Uganda indicated that
there had been arrests under section 145 of the Penal Code for homosexual acts, but that no
one had been convicted of homosexuality in Uganda. 14 The State party submits that
criminalization of homosexuality is insufficient to substantiate the allegations of a personal
risk of torture, and that the possibility of prosecution by the State does not amount to torture
under article 1 of the Convention. The State party recalls the Committee’s views that
difficult country conditions are not by themselves sufficient grounds for determining that a
particular person would be in danger of being subjected to torture if expelled to that country,
and that additional grounds must be taken into account to show that the individual
concerned would be personally at risk. 15
4.7
Accordingly, the State party submits that the complainant has not substantiated her
claim on prima facie basis, as none of the grounds on which she based her alleged risk of
torture, including that she faces a real and personal risk of violence at the hands of her
daughter’s father, the Government of Uganda and society in general, have been established.
4.8
As regards the merits of the case, the State party considers that the communication is
wholly without merit as there is no evidence in the communication to suggest that the
complainant is at foreseeable, real and personal risk of torture if returned to Uganda.
Complainant’s comments on the State party’s observations
5.1
On 12 April 2018, the complainant transmitted her comments through a third party,
Alex Varricchio, a friend of the complainant’s from Canada.16
5.2
As regards the exhaustion of domestic remedies, the complainant rejects the State
party’s observation that her communication is inadmissible for non-exhaustion of domestic
remedies. The complainant recalls that she was granted legal permissions to stay in Canada
from December 1999 to June 2004 and from December 2004 to October 2006. She submits
that she grew scared that she would be forcibly deported back to Uganda where she would
be at risk of torture, imprisonment or death. She did not know what to do: she had no
money, was very scared of being detected by the Canadian authorities and was not aware of
the available remedies. She claims that she once verbally indicated to a Canadian
immigration officer that she wanted to make a claim for refugee protection, but was told
that she was not eligible. She also submits that, since the removal order against her was
issued, on 1 June 2011, she has been ineligible to file a refugee claim in Canada. She thus
claims that she had no choice but to hide.
5.3
The complainant submits that she did not apply for permanent residence on the basis
of humanitarian and compassionate grounds because she thought that it would certainly be
rejected under Canadian law, and that in any case a pending humanitarian and
compassionate application does not constitute a ground for deferring a removal that has
become enforceable.17 The complainant also submits that in most recent cases the Federal
Court had held that there was no duty on the enforcement officer to defer removal pending
determination of the application. She recalls the Committee’s jurisprudence in recent cases,
13
14
15
16
17
6
The death penalty, which was contained in a previous version of the Act, was removed from the final
version.
See also Human Rights Watch, “Uganda: Anti-Homosexuality Act’s Heavy Toll: Discriminatory Law
Prompts Arrests, Attacks, Evictions and Flight”, 14 May 2014.
See E.L. v. Canada (CAT/C/48/D/370/2009), para. 8.5; and C.A.R.M. v. Canada, para. 8.6.
The long delay between the State party’s observations in August 2015 and the complainant’s
comments in 12 April 2018 is due to special circumstances. Although the complainant initially
submitted her comments on admissibility and the merits and on the State party’s request to lift interim
measures on 27 December 2015, the Committee never received the submission. See also para. 1.3
above.
See Wang v. Canada (Minister of Citizenship and Immigration), [2001] 3 FC 682, 2001 FCT 148.