hankyoreh

Seoul High Court

In Uganda, homosexuality is illegal. In 2014, an Anti-Homosexuality Act was passed that would put people convicted of regularly having physical relations with members of the same sex in danger of harsh punishment, including execution. While the country’s Constitutional Court soon invalidated the law, the parliament keeps passing similar laws. The United Nations High Commissioner for Refugees has concluded that in Uganda it is common for people to be served eviction notices or to be refused medical service at health centers simply because they are gay.

In Feb. 2014, a 28-year-old Ugandan woman (identified as “A”) fled her homeland. The woman explains that she was detained at a police station for a week because she is bisexual and that she was threatened and sexually assaulted while there. After she received another summons from the police, she spent more than two months on the run and then headed for South Korea. “A” was threatened by people in her village, and she believes that it was her adoptive mother who told the police about her bisexuality. She believes she would not be safe if she returned to Uganda. But South Korea‘s Ministry of Justice dismissed her request for recognition as a refugee, saying that her claims did not mean she has “adequate grounds for fearing persecution.”

The district court’s decision in the first trial was the same as the Ministry of Justice. In Dec. 2016, the Seoul Administrative Court found that the Ugandan woman’s testimony about her bisexuality and the police questioning was inconsistent and that she could avoid persecution by moving to a different part of Uganda and living there. The court believed that “A” had not cleared the two main hurdles for being acknowledged as a refugee, which are “having a credible testimony” and “having adequate grounds for fearing persecution.”

The appeal court came to a different conclusion. On July 23, the 7th Administrative Panel of Seoul High Court (with Yoon Seong-won as presiding judge) overturned the lower court’s ruling and ordered the Seoul office of the Korean Immigration Service to reverse its decision not to give “A” status as a refugee. First, the court said that her testimony was credible. “Given society‘s attitude toward and treatment of bisexuals in Uganda, her claims appear completely plausible,” the court said. “Considering her position as an applicant for refugee status and her passive position as someone who must answer the questions of the investigator, it is only natural for there to be differences in the details of her testimony,” it added. Just because “A” failed to give watertight testimony, the court said, does not mean that her testimony lacked credibility.

The appeals court also found that “A” had “adequate grounds for fearing persecution.” “There is widespread hatred of LGBT individuals in Uganda, and we cannot confirm that the government has indicted the perpetrators or has taken appropriate protective measures for the victims. It cannot be assumed that she would be able to move to another area and live a safe life while maintaining her sexual identity. Instead, the fact that she applied for refugee status has increased the likelihood of the Ugandan government recognizing that she is a bisexual and indicting her on other criminal charges,” the court said. In support of these conclusions, the court cited a report by an American polling organization stating that 96% of Ugandans think that homosexuality should not be accepted and by a large number of reports by media organizations such as Reuters and the Guardian. “When someone is unable to openly express their sexual identity out of concern about persecution, that itself can be regarded as persecution,” the court said.

It is rare for South Korean courts to grant refugee status to individuals who might be persecuted because of their sexual identity. On July 12, the first panel of the Supreme Court (with Justice Kim So-young presiding) ruled in the case of an Egyptian identified by the letter “B” that “simply because someone has the sexual preference of homosexuality does not mean that they can be regarded as having adequate grounds for fearing persecution.”

By Hyun So-eun, staff reporter

Please direct questions or comments to [english@hani.co.kr]