Categories
All Countries Iran

2021 RLLR 55

Citation: 2021 RLLR 55
Tribunal: Refugee Protection Division
Date of Decision: August 23, 2021
Panel: Ted Bethune
Counsel for the Claimant(s): Adetayo G Akinyemi
Country: Iran
RPD Number: TB9-08875
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision for XXXX XXXX XXXX, file number TB9-08875.

[2]       I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. I have also considered and applied the guidelines relating to gender expression and sexual orientation.

[3]       You claim to be a citizen of Iran and are claiming refugee protection pursuant to section 96 and 97 of the Immigration and Refugee Protection Act. I find that you are a Convention refugee for the following reasons.

[4]       The allegations of your claim in your Basis of Claim form. In short, you allege persecution as a bisexual man. You allege that you realized your sexual orientation throughout high school. And when you were in second year, you felt a strong sexual attraction to another boy in your school, and that you struggled with this due to the attitude of your community towards same-sex attraction. You allege that, in your final year of high school, you became involved in a romantic relationship with that same boy. You allege this relationship continued on — until 2012, when he dropped out of the university you both attended, and that you had lost contact by November of 2013.

[5]       You allege that you eventually reconnected in March 2018 when he contacted you and asked for a lot of money, which you gave. However, after you realized he had a drug addiction, you declined to give him further loans. You allege that he continued to ask for money and eventually turned hostile. In November 2018, you allege he threatened to expose your sexual orientation to your wife if you did not give him further money. You allege that you then disclosed your prior same-sex relationship to your wife to prevent him from blackmailing you and then continued to refuse to give money to your former partner.

[6]       You allege that, subsequently, you came to Canada in XXXX of 2019, and that while in Canada, you found out that your former same-sex partner had been arrested and had given your name as one of his same-sex partners, leading the police in Iran to begin searching for you. You allege that, in Iran, you would face imprisonment and torture, as well as possible execution by the Iranian government due to your sexual orientation. You allege there is no state protection for you or an internal flight alternative anywhere in Iran.

[7]       Your personal identity as a citizen of Iran has been established by your testimony and the supporting documents filed in Exhibit. Specifically, your valid Iranian passport and Canadian visa. I, therefore, find on a balance of probabilities that your identity and country of reference have been established.

[8]       I find that there is a link between what you fear and one of the five Convention grounds because of your membership in a particular social group as a bisexual man. I find on a balance of probabilities, based on your testimony and the supporting documents filed, that there is a serious possibility of persecution from the Iranian government based on your sexual orientation. Sworn testimony is presumed to be credible unless there is a valid reason to doubt it. I am cognizant of the difficulties faced by individuals in establishing their claims, including cultural factors, testifying to an interpreter, and the milieu of the hearing room.

[9]       Overall, I have found you to be credible. I found your testimony flowed naturally and unprompted and was generally consistent with the evidence in your narrative. You were able to explain in significant detail about the beginning of your relationship with your same-sex partner, including that you had seen him in previous at high school, and on the first day of your last year of high school, you had an interaction with him where you lent him your only pen due to your attraction to him. You then testified as to how your friendship grew and gave examples of the small flirtatious gestures you made to one another as you tested to see if the other person was also interested in a romantic relationship, including how you both interpreted things such as inadvertent touching while walking to be romantic attraction because neither of you would shy away from such contact. You were able to candidly testify in detail about that night of your first romantic encounter, where you had the spent the Iranian New Year at his house, and he suggested you stay over, and when laying in bed together, he touched your hand and began a romantic encounter.

[10]     You testified honestly and in significant detail about your same-sex partner and specific events throughout the relationship, including examples of his interest in volleyball and how that sparked your own interest in volleyball, examples of fights you had with him over his cellphone use during dinner, and the plans you made for your second anniversary to spend it together, since you had not been able to spend your first anniversary together, which had left you heartbroken.

[11]     I found your description of how you lost touch, ending your relationship, to be honest, including your description of your emotions at the time and the efforts that you had made to attempt to regain contact. Also found that your description of your emotions when you reconnected with him to be candid and honest, including your emotional reaction when he asked for money and when he eventually started threatening to reveal your prior relationship in an attempt to extort more money from you.

[12]     I also considered your delay in leaving Iran from when you first realized your sexual orientation in high school until you left in XXXX of 2019. You testified that your same-sex attraction was not discovered by the Iranian authorities until after you had arrived in Canada, and that you had managed to keep your sexual orientation a secret until then. I consider that explanation reasonable, and I draw no negative credibility inference.

[13]     I have also considered your departure from Iran to other countries prior to coming to Canada, namely to Russia in 2007, China in 2018, and Turkey in 2018, and that you did not claim refugee status in any of those countries, but instead returned to Iran. You testified that your same-sex attraction was not discovered by the Iranian authorities until after you had arrived in Canada, and that having managed to keep it a secret, there was no threat to you and that you liked living in Iran. I consider that explanation reasonable, and I draw no negative credibility inference.

[14]     I’ve also considered your delay in claiming refugee protection from when you arrived in Canada on XXXX XXXX, 2019, until you signed your Basis of Claim form on March 29th, 2019. You testified that you did not know your sexual orientation had been discovered by the Iranian authorities until March 10th, 2019, but you had a valid visitor visa for a full month after you arrived in Canada, and I note that your Basis of Claim form was signed less than three weeks after you found out your sexual orientation had been disclosed to the Iranian government. I consider that explanation reasonable, and I draw no negative credibility inference.

[15]     I, therefore, find on a balance of probabilities that you have established your sexual orientation as a bisexual man. I am, therefore, satisfied that there is a serious possibility that you would face persecution at the hands of either the Iranian government or your community should you return to Iran. I find that you have established your subjective fear.

[16]     I further find on a balance of probabilities that you have an objective basis for your fear because of the documented conditions for Iran, as per the evidence in Exhibit 3, the National Documentation Package for Iran.

[17]     Item 2 point reads, “The law criminalizes consensual same-sex sexual activity, which is punishable by death, flogging, or a lesser punishment. The law does not distinguish between consensual and non-consensual same-sex intercourse, and NGOs reported this lack of clarity led to both the victim and the perpetrator being held criminally liable under the law in cases of assault. The law does not prohibit discrimination based on sexual orientation and gender identity. While few details were available for specific cases, lesbian, gay, bisexual, transgender, and intersex activists expressed concern that the government executed LGBTI individuals under the pretext of more severe, and possibly specious, criminal charges such as rape. In June 2019, the foreign minister appeared to defend executions of LGBTI persons for their status or conduct.”

[18]     Item 6.6 reads, “A number of interviews with persons accused of homosexual behaviour seem to show that the authorities use harsh measures during arrests and interrogations. Intimidation, blackmailing, incommunicado detention, rape, torture, coercion to sign, false confessions, and extrajudicial punishments such as flogging are widely practiced during detention and interrogation. In most cases, authorities try to press the detainee to make a confession of homosexual conduct and/or to reveal the identity of other homosexual persons. As various special procedures mandate holders have recognized, the criminalization of private consensual homosexual acts increases stigmatization and make people with diverse sexual orientations and gender identities, including minors, more vulnerable to community violence. Research carried out by the Iranian Lesbian and Transgender Networks shows that LGBT adolescents tend to experience homophobic taunts, insults, and threats on a constant basis, and this is in fact so common that many of them decide to isolate themselves in order to avoid being harassed or assaulted by members of the public.”

[19]     I find on a balance of probabilities that your subjective fear has an objective basis. Therefore, I find you to have a well-founded fear of persecution due to your sexual orientation.

[20]     As same-sex sexual activity is criminalized by the government in Iran, I find that there is clear and convincing evidence that state protection would not be available to you. Likewise, as your persecution is at the hands of the state, and the state applies its persecution throughout the country, I find that there is nowhere in Iran where you would not face a serious possibility of persecution based on your membership in a particular social group as a bisexual man. 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.

[21]     Based on the totality of the evidence, I find you to have a serious possibility of persecution in Iran due to your membership in a particular social group as a bisexual man, and therefore, to be a Convention refugee. Your claim is, therefore, accepted.

[22]     CLAIMANT: Thank you very much, sir. Thank you.

[23]     COUNSEL: Thank you.

[24]     INTERPRETER: (Speaking foreign language).

[25]     CLAIMANT: Thank you so much.

[26]     MEMBER: Thank you very much. This hearing is now concluded. I wish you well.

——————–REASONS CONCLUDED ——————–

Categories
All Countries Iran

2020 RLLR 190

Citation: 2020 RLLR 190
Tribunal: Refugee Protection Division
Date of Decision: September 25, 2020
Panel: M. Moc
Counsel for the Claimant(s): Peter R. Neill
Country: Iran
RPD Number: TB8-29619
Associated RPD Number(s): N/A
ATIP Number: A-2020-00859
ATIP Pages: 003619-003623

REASONS FOR DECISION

[1]       These are the reasons for the decision in the claim of Mr. XXXX XXXX who claims to be a citizen of Iran and is seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).i

DETERMINATION

[2]       The panel finds that the claimant is a Convention refugee under section 96 of IRPA for the following reasons.

ALLEGATIONS

[3]       To summarize the allegations in the Basis of Claim (BOC)ii dated November 7, 2018, the claimant fears harm at the hands of the Iranian authorities as a convert from Islam to Christianity. With relatives in Canada, the claimant made two previous trips before seeking refugee protection during his third family visit. In Iran, the claimant had been studying the Bible in secret with a friend until the friend left for the United Kingdom to flee religious persecution a few years ago. Shortly after arriving in Canada in XXXX 2018, the claimant embraced the freedom to explore Christianity and began attending church. Despite attending various church services and Bible classes, in both Farsi and English, for several months, the claimant felt that should be “searching and learning more” before being fully ready to answer the call of Jesus Christ and be baptized.

[4]       The claimant fears persecution in Iran on the basis of religion as a convert from Islam to Christianity. He also alleges that he would not be able to practise his religion safely and openly, fearing arrest by state officials, if he were to return to Iran.

ANALYSIS

Identity

[5]       The claimant’s identity as a national of Iran has been established by his testimony, and by a valid Islamic Republic of Iran passport that was seized by IRCC (formerly CIC).iii

Credibility

[6]       The panel found the claimant to be a credible witness overall. When confronted with the panel’s concerns regarding his reavailment from Canada to Iran in 2015 and 2016, the claimant responded that he had not realized the seriousness of the risk he might face in Iran. It was only when his Christian friend fled to the U.K after arrest and interrogation by the Iranian authorities that the claimant knew he would have to stop his religious activities. The panel accepts this explanation for the claimant’s reavailment to Iran as satisfactory.

[7]       The claimant was questioned on his religious practice in Iran and in Canada, including his initial motivation and gradual acceptance of Christianity as his own faith; his testimony was consistent with the Basis of Claim allegations, refugee intake forms, and corroborated by the personal documentsiv produced as part of the claim.

[8]       In support of his religious identity and church involvement in Canada, the claimant submitted three letters: from his friend now residing in the U.K.; from his Farsi-speaking pastor; and from Pastor XXXX XXXX of XXXX XXXX XXXX XXXX, confirming the claimant’s church membership, Bible study, and fellowship participation.

[9]       On XXXX XXXX, 2020, counsel submitted post-hearing documents in the form of a baptism certificate, dated XXXX XXXX, 2020, from the pastor of The Living Room Church, the disclosure and acceptance by the RPD had been significantly delayed until XXXX 2020 as a result of the COVID-19 business shutdown.v

[10]     Considering the totality of the evidence, the panel finds that there is credible and trustworthy evidence before it that the claimant has established, on a balance of probabilities, his profile as a practising Christian.

[11]     As religion forms a basis for refugee claims, as per section 96 of IRPA, the test is whether there is a serious possibility of persecution should the claimant return to Iran. The panel finds, based on the evidence before it, that he has met that test.

State protection

[12]     The panel has before it the National Documentation Package (NDP) for Iran,vi which contains a substantial amount of objective documentary evidence on religious persecution in that country.

[13]     The U.K. Home Office report, in particular, indicates that

Christians who have converted from Islam are considered apostates – a criminal offence in Iran. Sharia law does not allow for conversion from Islam to another religion, and it is not possible for a person to change their religious affiliation on personal documentation. There are reports of some Christian converts (and sometimes their family members) facing physical attacks, harassment, threats, surveillance, arrest, detention, as well as torture and ill-treatment in detention.vii

[14]     Christians attending house churches in Iran may also be arrested for “being a threat to national security … This goes both for low profile cases, and if you are a house church leader.”viii The panel has before it a report on several “Christian converts from Islam who have been imprisoned in XXXX, Iran on account of their faith” and who are currently serving sentences, or facing charges, for “‘action against national security’ and ‘propaganda against the order of the system’.”ix

[15]     The panel finds that the objective documentary evidence cited above on the persecution of Christians—and especially converts to Protestant forms of Christianity, as is the case with the claimant’s established membership in a Protestant church in Canada—supports the claimant’s allegations, and that he has rebutted the presumption of state protection as a Christian convert should he return to Iran.

[16]     The panel also finds that there is no viable internal flight alternative available to the claimant anywhere in Iran, as he would be prevented from practising his religion safely and openly by agents of the state throughout the country.

CONCLUSION

[17]     Based on the above findings, the panel determines that the claimant has established that there is a serious possibility of persecution if he were to return to Iran.

[18]     The panel therefore concludes that the claimant is a Convention refugee under section 96 of IRPA and accepts the claim.

(signed)           M. Moc

September 25, 2020

Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and subsection 97(1).

ii Exhibit 2.

iii Exhibit 1, package of information from the referring CBSA/CIC.

iv Exhibit 6, personal documents.

v Post-hearing documents.

vi Exhibit 3, National Documentation Package, Iran, 31 March 2020.

vii Ibid., item 12.5.

viii Ibid., item 12.10.

ix Ibid.

Categories
All Countries Iran

2020 RLLR 171

Citation: 2020 RLLR 171
Tribunal: Refugee Protection Division
Date of Decision: October 23, 2020
Panel: Bjorn Einarson
Counsel for the Claimant(s): Frances Mahon
Country: Iran
RPD Number: VB9-08349
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000173-000178

REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claim of XXXX XXXX, who claims to be a citizen of Iran, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD)2 and paragraph 170(f) of the Act.

[3]       The claimant identifies as a transgender man and prefers “he/him” pronouns as well as the male name “XXXX” rather than his legal first name “XXXX”. Although his identity documentation reflects his birth as a female, his preferred pronouns will be used in this decision

ALLEGATIONS

[4]       The specifics of the claim are set out in the narrative of the Basis of Claim form.3

[5]       The claimant alleges that he is a transgender man who has been in a seven-year relationship with a woman named XXXX XXXX who still lives in Iran.

[6]       Although he is a transgender man, the claimant alleges he is perceived to be female in Iran. As such, his relationship with XXXX is perceived as a lesbian relationship and the claimant is therefore perceived by Iranian society and the state as a lesbian.

[7]       The claimant alleges that he faces a forward-looking risk of harm because he is perceived to be a lesbian.

DECISION

[8]       I find that the claimant is a refugee, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should he return to Iran, on account of his membership in a particular social group, specifically as a transgender man who would be perceived as a lesbian in Iran.

Identity

[9]       I find that the claimant’s identity as a national of Iran is established by the documents provided, namely his passport.4

Credibility

[10]     Based on the documents in the file, I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above on a balance of probabilities: that the claimant is a transgender man who would be perceived to a lesbian in Iran.

[11]     After reviewing the documents, I have no reason to doubt their authenticity.

[12]     Specific documentary evidence provided in Exhibit 4 – namely a) a letter of support from the claimant’ s partner, b) letters of support from other members of the LGBT community in Iran, c) correspondence between the claimant and his partner, and d) photographs of the claimant and his partner5 – establish, on a balance of probabilities, the credibility of the claimant’s risk profile. I find that these documents – to which I assign full weight – with the evidence adduced from the basis of claim narrative, is sufficient to establish on a balance of probabilities that the claimant is a transgender man who would be perceived as a lesbian in Iran.

Nature of the harm

[13]     I have examined this claim under section 96 of the IRPA, as I conclude that the risk the claimant faces constitutes persecution based on at least one of the grounds prescribed in the Refugee Convention, specifically his membership in a particular social group, specifically as a transgender man who would be perceived as a lesbian in Iran.

Objective basis

[14]     Given that there are no serious credibility issues with respect to the claimant’s central allegations, coupled with the documentary evidence set out below, I find that the claimant has established a prospective risk of being subjected to the following harm were he to return to Iran: that he would be subject to detention, imprisonment, or other judicial action for charges related to his perceived sexual orientation.

[15]     The allegation of risk is corroborated by the following document in the National Documentation Package (NDP).6

[16]     I have found that, on a balance of probabilities, the claimant would be perceived as a lesbian if he returned to Iran. As such, the objective basis of Iranian law regarding lesbian sexuality is essential to consider. Article 238 to 240 of the Iranian Penal Code are cited in NDP 6.2:

  • Article 238. Musaheqeh: Musaheqeh is defined as where a female person puts her sex organ on the sex organ of another person of the same sex.
  • Article 239. The hadd punishment for musaheqeh shall be one hundred lashes.
  • Article 240. Regarding the hadd punishment for musaheqeh, there is no difference between the active or passive parties or between Muslims and non-Muslims, or between a person that meets the conditions for ihsan and a person who does not, and also whether or not [the offender] has resorted to coercion.7

[17]     On this basis, I find that there is a serious possibility that the claimant would charged under these provisions of the Iranian Penal Code, if he were to return to Iran, continue his long­ term relationship with XXXX, and live his life fully without recourse to repression or secrecy. Because these legal prescriptions constitute prosecution of the claimant’s exercise of his natural rights and punish that exercise with corporal punishment, I find that they constitute persecution. As such, I find there is a serious possibility of persecution should the claimant be returned to Iran. Moreover, I therefore find that the claimant has established on a balance of probabilities a subjective fear of persecution in Iran due to their membership in a particular social group, namely as a transgender man who would be perceived as a lesbian in Iran.

State Protection

[18]     Whereas the agent of persecution is the state, I find that adequate state protection would not be reasonably forthcoming in this particular case.

Internal flight alternative

[19]     I have considered whether a viable internal flight alternative exists for the claimant. On the evidence before me and given that the agent of persecution is the state, and the state has effective control over the entire country, I find that there is a serious possibility of persecution throughout Iran.

CONCLUSION

[20]     In light of the preceding, I conclude that the claimant is a Convention refugee, pursuant to section 96 of the IRPA. Accordingly, I accept this claim.

(signed) Bjorn Einarson

October 23, 2020

Immigration and Refugee Protection Act, S.C. 2001, c. 27.

2 Instructions governing the streaming of less complex claims at the Refugee Protection Division, Dated January 29, 2019.

3 Exhibit 2.

4 Exhibit 1.

5 Exhibit 4.

6 Exhibit 3

7 Exhibit 3, National Documentation Package, Iran, 31 March 2020, tab 6.2: Iran. State-Sponsored Homophobia 2019. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Lucas Ramón Mendos. March 2019. p. 2.

Categories
All Countries Iran

2020 RLLR 170

Citation: 2020 RLLR 170
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2020
Panel: Carol-Ann Gibbs
Counsel for the Claimant(s): (no information)
Country: Iran
RPD Number: TB9-30697
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000131-000135

REASONS FOR DECISION

[1]       These are the reasons for the decision in the claim of XXXX XXXX (the claimant) who is a citizen of Iran and is seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       Paragraph 170(f) of IRPA2 provides that the Refugee Protection Division (RPD) may allow a claim for refugee protection without a hearing, unless the Minister has notified the RPD of the Minister’s intention to intervene within the time limit set out in the Refugee Protection Division Rules.3 Further, subsection 162(2) of IRPA4 directs each Division to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.

[3]       Having carefully considered the evidence in this case, the panel finds that it meets the criteria for file-review determination. This case has therefore been decided without a hearing, according to the Instructions governing the streaming of less complex claims at the Refugee Protection Division.5

ALLEGATIONS

[4]       Regarding the allegations, these are noted in the claimant’s basis of claim form (BOC).6 The following is a summary. The claimant is a young man. He was born female but identifies as a male. He has suffered persecution in Iran due to his gender identity and cannot live openly in Iranian society. He fears harassment and harm from the people in his community in Iran and he knows that Iranian authorities will not provide adequate protection. The claimant came to Canada in XXXX 2019 and made a claim for protection in November 2019.

ANALYSIS

Identity

[5]       Regarding identity, the claimant’s identity as a citizen of Iran is established by his Iranian passport.7 The claimant’s identity as transgender is established by his statements and photographs of himself as a child and teenager.8

Credibility 

[6]       Regarding credibility, the panel finds the claimant to be credible based on a review of the documents on file which are consistent.

[7]       The claimant’s fear of returning to Iran due to his transgender identity is supported in the documentary evidence.

“There is a strong societal taboo against homosexuality. International LGBTI (lesbian, gay, bisexual, transgender and intersex) NGOs report that many young gay men face harassment and abuse from family members, religious figures, school leaders, and community leaders. Authorities have reportedly expelled individuals from university for alleged same-sex relations. While official rhetoric against homosexual individuals and practices has reduced since the Ayatollah Khomeini era, high level officials (including Ayatollah Khamenei), have continued to issue derogatory statements about homosexuality. LGBTI individuals are unlikely to obtain protection from state officials, and may face harassment, abuse or arrest should they come to the attention of security forces. As noted in Military Objectors, men whose homosexuality or transgenderism has been established (through an intrusive medical examination) are exempted from military service and given the designation ‘mentally ill’ on their military cards, which can lead to later difficulties when seeking employment. Both gay men and lesbians face considerable societal pressure to enter into a heterosexual marriage and produce children. The government censors all materials related to LGBTI issues, including blocking websites or content within sites that discusses such issues. NGOs are unable to work openly on LGBTI issues… Iran has recognised transgender individuals since 1987, when Ayatollah Khomeini issued a fatwa declaring transsexuality to be in conformity with Islam. Authorities regard transsexuality as a disorder for which medical solutions are available, and permits hormone treatment and sexual reassignment surgery (SRS). The government provides financial assistance to undergo these treatments, and requires health insurers to cover the cost of SRS. Following a referral from a psychologist or psychiatrist, the Department of Forensic Psychiatry determines whether a person qualifies for such treatment. Only after SRS has been completed and their legal documents (including identity card, birth certificate and passport) adjusted is a person legally allowed to dress according to the opposite sex and to move into the spaces reserved for this sex. Authorities do not generally permit crossdressing because men or women dressing as the opposite sex reportedly represents a disruption to the social order. However, once an individual is diagnosed as suffering from gender dysphoria and agrees to undergo SRS, local authorities may issue them a permit to allow them to appear in public dressed as the opposite sex prior to the actual surgery. Post-surgery, transgender persons are advised to maintain discretion about their past due to stigma associated with being transgender.”9 In this case, the claimant has not chosen to undergo reassignment surgery.

The U.S. Department of State for 2019 reports as a significant human rights problem, “harsh governmental restrictions on the rights of women and minorities; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons; criminalization of LGBTI status or conduct.”10

[8]       It is reported in the NDP that people perceived as transgender by broader society are likely to experience violence and abuse by both state and non-state actors. Transgendered individuals are often arrested for not wearing the mandatory hijab. Targeting and harassment by the police can occur even when trans individuals have secured an official letter from the government certifying their gender identity disorder diagnosis.

[9]       A transgender person’s behaviour and way of life is often criminalized within Iran despite legal recognition of trans individuals’ gender identity. Members of the trans community in Iran are targeted by the state on the basis of alleged engagement in vaguely defined acts prohibited under the state’s interpretation of Sharia law. For example, pursuant to Article 638 of the Iranian penal code, which criminalizes haram, which are acts generally considered sinful or prohibited by Sharia law, authorities can arbitrarily harass, arrest, detain and prosecute anyone perceived to have committed sinful acts in public. Individuals convicted under this article can spend between 10 days and two months in prison or be subjected to 74 lashes.

State Protection

[10]     The panel finds that the claimant has rebutted the presumption of state protection given that the documentary evidence that the state does not provide adequate protection and, in some cases, the state is reported to harass and abuse members of the LGBTQ community in Iran.

Internal Flight Alternative

[11]     The panel finds that there is no viable internal flight alternative for the claimant. In this case the claimant fears both state and non-state actors. There does not appear to be anywhere in Iran where the claimant could live without this fear.

CONCLUSION

[12]     Having considered all of the evidence, the panel finds the claimant is a Convention refugee and accepts the claim.

(signed) Carol-Ann Gibbs

October 29, 2020

Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.

2 Ibid., section l 70(f).

3 Refugee Protection Division Rules (SOR/2012-256).

4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 162(2).

5 Instructions governing the streaming of less complex claims at the Refugee Protection Division, effective January 29, 2019.

6 Exhibit 2

7 Exhibit 1

8 Exhibit 4

9 Exhibit 3, item 1.8

10 Exhibit 3, item 2.1

Categories
All Countries Iran

2021 RLLR 33

Citation: 2021 RLLR 33
Tribunal: Refugee Protection Division
Date of Decision: November 22, 2021
Panel: J. Kim
Counsel for the Claimant(s): Farzan Fallahpour
Country: Iran
RPD Number: TB9-16035
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000163-000165

DECISION

[1]     MEMBER: This is a decision for the claimant XXXX XXXX, file number TB9-16035. I’ve considered your testimony and other evidence in the case, and I’m ready to render my decision orally. For making this decision and in formulating questions for the hearing, I considered Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation, and gender identity and expression. You are claiming to be a citizen of Iran and are claiming Refugee Protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act. I find that you are a Convention refugee for the following reasons.

[2]     You allege the following. That you are a citizen of Iran, and that if you were to return, you will face persecution because of your membership in a particular social group as a gay man. You allege that there is not state protection for you or an internal flight alternative.

[3]     Your personal identity as a citizen of Iran has been established by your oral testimony and a copy of your passport, which can be found at Exhibit 1. I find on a balance of possibilities that identity and the country of reference, which is Iran, have been established.

[4]     In terms of your general credibility, I found you be credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim forms. You provided an extensive amendment to the original Basis of Claim form, which originally alleged that you were gay and also a transgender woman. You’d retracted that portion of the original Basis of Claim form that stated that you are transgender woman, and alleged improper conduct by your former counsel and the interpreter for the counsel. Your testimony was straightforward and was keeping with amended Basis of Claim form. There were no significant inconsistency or omission that went to the heart of the claim, which is that you are a gay man (sic).

[5]     Your oral testimony today included details regarding your realization about your sexual orientation, and learning about the term, and what being a gay person means to you. You discussed your serious relationship you had with a person of the same gender in Canada, and regarding the short-term relationship you’ve had since then. You discussed your serious relationship, how the two you met, how the relationship developed, what you two did as a couple, and how you to broke up, as he had to return to Iran to family issues. You discussed a fear you had of what would happen to him, as he was returning to Iran after being in relationship with another man, and that you never contacted him since you two parted ways.

[6]     You also discussed your father’s negative reaction when he found out about your relationship with your boyfriend and how he cut you off. You also discussed activities you have done in Canada, such as going to clubs and attending pride parade. Your best friend also testified today, in regard to your sexual orientation and knowing about your serious relationship. Although there were some minor inconsistencies with his testimony and your testimony, I do not draw negative credibility inferences on them.

[7]     You provided your own affidavit, in regard to the reason for significant amendment on your Basis of Claim form and XXXX Assessment Report, which can be found at Exhibit 5. You also provided communication to your previous counsel, and the response from the previous counsel. I do not put a lot of weight on this issue with previous counsel, as I find it to be not determinative, as I found you to be credible in your allegation that you are a gay man. Your testimony and the supporting documentation all established, on a balance of probabilities, you are a gay man.

[8]     The country condition documents in the National Documentation Package for Iran, which can be found at Exhibit 3, are consistent with your allegation that there is a serious possibility that you will face persecution as a gay man in Iran. Item 2.1, the US Department of State Report for Iran, points to the crimes involving violence or threats of violence targeting members of the LGBTQ+ communities, criminalization of consensual same-sex conduct as few of significant human rights issues present in Iran (sic). Item 6.2, report by International Lesbian Gay Bisexual Trans and Intersex Association, states the implementation of discriminatory laws against same-sex relations, and states that healthcare professionals have been reported to regularly tell gay and lesbian patients that their same-sex attraction and gender non-conformity are a sign of gender identity disorder that must be treated.

[9]     Item 6.6, report by UK Home Office on sexual orientation and gender identity or expression also points to the Islamic Penal Code that criminalizes same-sex sexual relations, and states that the security forces rely upon discriminatory laws to harass, arrest, and detain those they suspect of being lesbian, gay, and bisexual. Having considered this objective evidence, together with your consistent and credible testimony, I find on a balance of probabilities that you have well-founded fear of persecution in Iran.

[10]   I find on a balance of probabilities that adequate state protection would not be available to you if you were to seek it in Iran, as the agent of persecution is the state authorities. It would be unreasonable to expect you to seek state protection in this case. As already stated, that you report by UK Home Office, Item 6.6, states that security forces use laws to harass and abuse those are part of LGBTQ+ communities in Iran. Therefore, I find on a balance of probabilities that you have rebutted the presumption state protection because adequate state production will not be available to you, as the state will be unwilling to protect you in Iran.

[11]   As you have rebutted the presumption of state protection, and since the country documentation indicates about the situation for individuals in circumstances such as yours is the same throughout the country, I find on the balance of probabilities that you do not have a viable internal flight alternative.

[12]   In conclusion, after assessing ail of the evidence, I find that you have established that there is a serious possibility of persecution on the Convention ground, because of your membership in a particular social group as a gay man. I therefore find that you are Convention refugee, and I accept your claim.

[13]   All right. Thank you, that concludes this hearing.

———-REASONS CONCLUDED———-

Categories
All Countries Iran

2021 RLLR 11

Citation: 2021 RLLR 11
Tribunal: Refugee Protection Division
Date of Decision: October 1, 2021
Panel: Osehise Odigie, Megan Kammerer, Andriy Rak
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Iran
RPD Number: VC1-04075
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000034-000037

Decision

[1]     MEMBER: So, we have had time to go through your documents and to review your hearing, and we have reached a positive decision. I would like to give you the option of how you want to hear my reasons for decision. Would you prefer that I read everything, and Mister Interpreter would summarize for you? Or would you prefer a line-by-line interpretation? Or would you also prefer that I read everything in English, and then you can confer at the end of the hearing with your counsel and interpreter?

[2]     CLAIMANT: The last option, I agree with that one.

[3]     MEMBER: So, I read everything out in English, and then when we are done, you confer with Mister Interpreter and your counsel, correct? Okay, so I will proceed to read the Panel’s reason for decisions today. So, this is a decision for the claimant, XXXX XXXX, who also goes by the name of XXXX (ph) XXXX XXXX You are claiming to be a citizen of Iran and claiming refugee protection, pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act. You identify as a transgender man, and prefer the ‘he’, ‘him’ pronouns, as well as the male name, XXXX, rather than your legal first name, XXXX. Although your identity documentation reflects your birth as a female, your preferred pronouns will be used in this decision.

[4]     In rendering in this decision, the Panel has applied the Chairperson’s Guidelines on sexual orientation and gender identity, and the Chairperson’s Guideline on women refugee claimants. The Panel has considered your testimony and other evidence in the case, and it is ready to render the decision orally.

Determination

[5]     The Panel finds that you are a Conventional refugee, pursuant to s. 96 of the IRPA, as there exists a serious possibility of persecution, should you return to Iran, on account of your membership of a particular social group, specifically as a transgender man in Iran. You alleged that you are a citizen of Iran, you self-identify as a transgender. You were born female, however, you allege that you have never associated with being female, and that, at first, you identified as being transgender when you turned XXXX. You also stated that in your early years, in your teenage years, you were attracted to a girl who was older than you, and that was your first recollection of your friendship. And in middle school, you were taught religion and life, where you were taught that feelings for the same sex is haram, and punishable by death. You further alleged that your family was in denial about your agenda, and this made you feel very hot, and you stopped making eye contact with people in school, but the shaming and hostility never disappeared. You allege that you had to identify as a woman in order to obtain employment in Iran, and that you have also lost jobs because of your failure to adhere to gender norms. You state that you have been arrested twice, and you are not safe in Iran.

[6]     You further allege that after graduation, you were determined on leaving Iran, and you immediately started studying English and taking the IELT’s courses. You started searching and applying to different colleges in Canada, and after getting admitted to XXXX College in XXXX of 2019, you applied for a study permit. And in XXXX of 2019, you were refused. In XXXX of 2020, you received your Canadian student visa. You allege that if you return to Iran, you would not be able to exercise your basic human rights, as you would not be able to live life as you want, or dress as you want. You fear you be stoned or killed in Iran. Your persona) identity as a citizen of Iran has been established by your testimony and the Iranian passport with Canadian visa. The Panel finds that on a balance of probabilities that your identity and country of reference have been established, and the Panel is satisfied of your identity and that you are a citizen of Iran. The Panel has also considered this claim under s. 96 of the IRPA. I will conclude that the risk you face constitutes persecution, based on at least one of the grounds prescribed in the Refugee Convention. Specifically, your membership in a particular social group as a transgender man in Iran.

[7]     In terms of credibility, you gave your evidence in a clear and direct manner. At the hearing, you testified that you realize that you were different since you were a child but learned a lot about being a transgender male at XXXX, when you had a teammate who was transgender. You spoke about your experiences growing up in Iran and how you first realized that you were attracted to XXXX (ph), who you met at the university dormitory and became your roommate. You testified that you had a relationship with her for four years, and lived together at the dormitory, and later in a rented apartment. You testified to knowing a few other transgender people in your country, including your best friend, XXXX (ph). You further testified that you had to move away from the dormitory in order to prevent harm when XXXX was threatened. You testified that Iran issues trans certificate to individuals in certain circumstances. When asked if you attempted to procure one, you stated “No”, as that would require permission from your father, who did not like the idea of you cutting your hair and would not have agreed to permission to procure the certificate. You testified that since coming to Canada, you have been involved in the LGBTQ community, particularly with the 519 LGBTQ community, where you have participated in programs organized, and have been a part of resume writing workshop, and you further testified that you have started the process of gender reassignment by taking testosterone. You further stated that you feel free in Canada and do not feel at risk in Canada, as there is freedom for members of the LGBTQ community. You also submitted evidence to corroborate your claim. This includes letters of support from XXXX XXXX (ph), XXXX XXXX (ph), XXXX (ph) XXXX (ph), and XXXX (ph). You also included picture of LGBTQ physical activity program event by 519.

[8]     There were no material inconsistencies or contradictions within your evidence that were not reasonably explained, or that undermined your credibility. Based on the presumption of truthfulness, your consistent testimony and the corroborative evidence provided by you in this claim, the Panel accepts you as transgender. The Panel finds that you have a well-founded fear of persecution, based on your sexual orientation as a transgender male. You were arrested twice when you were XXXX, and you father had to come and release you, and also in 2017, when you had to pay a bribe to be released. You were forced to hide your sexual orientation and your relationship with XXXX, and you took many precautions to keep your yourself out of harm’s way. The Panel therefore finds that your subjective fear is established by your credible testimony, and the Panel believes what you have alleged on a balance of probabilities. Given that there are no serious credibility issues with respect to your allegation, coupled with the consistent manner you have testified, as well as documentary evidence set out below, the Panel finds that you have established a prospective risk of being subjected to detention, imprisonment, or other actions, for charges related to your status as a transgender man in Iran.

[9]     The allegation of risk is corroborated by the following document in the National Documentation Package, NDP for Iran, dated April of 2021. The objective evidence demonstrates that individuals who are transgender face treatment in Iran that amounts to persecution. NDP 6.6 states that a report produced by Outright Action International in October, 2016, titled, “Being Transgender in Iran” stated the following. “The Iranian government officially uses the term ‘gender identity disorder’ to describe trans people. Although the medicalization of issues related to gender identity has allowed for some legal recognition for members of the trans community, it has also reinforced the stigma rooted in the notion that trans individuals suffer from psychological and sexual disorder and require treatment to become ‘normal’. Since the state and many members of the medical community see being trans as a disease, they regard trans experience as a condition to be ‘cured’ through medical transitional processes such as hormone replacement, therapy, and surgery. Iranian law allows for the legal recognition of trans individuals’ gender identity; however, such recognition is only granted to individuals officially diagnosed with GID, and upon their successful completion of a long process of legal and medical transition. The government’s position has led some observers to conclude that Iran is progressive on trans rights. While there are positive aspects to the government’s policies, trans Iranians continue to face serious discrimination and abuse by both law and practice, and they are rarely treated as equal members of the society. Iranian law fails to recognize the gender identity of any individual who is not granted access, does not wish, or cannot afford to pursue the GCS. This deprives many of legal recognition and render them particularly vulnerable to harassment and discrimination.”

[10]   NDP 6.5 further states, “As a result, trans individuals in Iran who do not wish to pursue medical transition processes, who cannot afford such processes, or who wish to pursue some forms of medical gender transition but not others, are wholly deprived of legal identity recognition and face severe barriers to maintaining and pursuing education, to accessing housing and employment, and to moving freely and safely through society. The law does not recognize such trans individuals, nor does it provide space or legal recognition for individuals who identify across or outside of the gender binary.” In this case, you testified that you were not able to pursue a medical transition process in Iran, because you were not able to obtain the consent of your father. You are thus prohibited from living openly as a transgendered person in Iran and are subject to risks set out above. On this basis, and as such, the Panel finds that there is a serious possibility of persecution, should you be returned to Iran. The Panel therefore finds that you have established, on a balance of probabilities, a subjective fear of persecution in Iran due to your membership to a particular social group, namely as a transgendered man in Iran. In this case, in terms of state protection, the agents of the persecution is the state, as the persecution you will face, should you return to Iran, is at the hands of the authorities. This is evidenced in your past encounters with the police, twice at 16, and also in 2017. Accordingly, the Panel finds that there is no state protection for you.

[11]   The Panel also has considered whether there is a viable internal flight alternative for you. On the evidence before the Panel and given that the agent of persecution is the state, and the state has effective control over the entire country, the Panel finds that there is a serious possibility of persecution throughout Iran, and the Panel finds that there is no viable internal flight alternative for you in Iran.

[12]   In conclusion, based on the totality of evidence, including your narrative, the testimony, and supporting documents, the Panel finds you to be a Conventional refugee and therefore accepts your claim. Thank you very much. Carrie (ph), any words from you?

[13]   UNIDENTIFIED SPEAKER: That concludes our hearing here today. I want to thank you very much for participating in this hearing, and I want to welcome you to Canada. So, what we are going to do now is we are going to stop the recording, and then we will disconnect the proceedings.

——————–REASONS CONCLUDED ——————–

Categories
All Countries Iran

2021 RLLR 8

Citation: 2021 RLLR 8
Tribunal: Refugee Protection Division
Date of Decision: September 8, 2021
Panel: Jennifer Smith
Counsel for the Claimant(s): Marcia Pritzker Schmitt
Country: Iran
RPD Number: VC1-05995
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000012-000018

REASONS FOR DECISION

INTRODUCTION

[1]     These are the reasons for the decision in the claim of XXXX (AKA XXXX) XXXX XXXX, a citizen of Iran who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2]     This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of IRPA.

[3]     In deciding this claim, I have considered all of the evidence before me, including the Basis of Claim (BOC) form,1 the referral documents,2 the country of origin information contained within the National Documentation Package (NDP) for Iran3 and the balance of the claimant’s documentary evidence.4

[4]     In rendering my reasons, I have considered and applied Chairperson’s Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution5 and Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression6 as it is, in my view, necessary to remain mindful of the intersecting relationship between gender, sexual orientation, and gender identity.

ALLEGATIONS

[5]     The claimant alleges that he has suffered past harms, including threats and discrimination, from his parents, school officials, healthcare workers and society generally because his gender identity does not follow the norms of Iranian society. The claimant describes himself as a “trans guy” who was required to obey the rules as a “female” — which he describes as the binary gender he was born with.

DETERMINATION

[6]     I find that the claimant is a Convention refugee, pursuant to section 96 of IRPA.

Identity

[7]     I find that the claimant’s identity as a national of Iran is established by his sworn statements and the documents provided, including the certified copies of his passport in evidence.7

Nexus

[8]     I note that Canadian jurisprudence and the Gender Guideline makes it clear that RPD members are to consider the interplay between multiple grounds of persecution advanced by a claimant.8 The claimant fears continued mistreatment due his actual and perceived gender identity and actual and perceived sexual orientation. I find that the persecution alleged by the claimant has separate and intersecting connections to the Convention, relating to the claimants’ membership in particular social groups.

Credibility

[9]     Based on the evidence provided, I have noted no serious credibility issues. In particular, I am satisfied that the claimant has, through his statements and accompanying documentary evidence, established his transgender identity on a balance of probabilities. The relevant documentary evidence is extensive and includes the claimant’s birth certificate, passport and school documents,9 all of which indicate that the claimant was, at the time of the documents’ creation, identified by others as a female person. Other later documents include a social work report from XXXX 2018, counsellor’s report from 2020, a letter from the claimant’s girlfriend of several years10 a medical doctor’s letter from 202011 and support letters from a 2SLGBTQ+ Youth Outreach Worker and Youth Sexual Health Coordinator.12 These documents are consistent with one another regarding the claimant’s experiences and struggles relating to his gender identity and his efforts to seek medical and XXXX supports in Canada.13 These documents are also consistent with the claimant’s own accounts of his experiences and provide corroborative support for his stated gender identity and the past harms to which he has been subjected in relation to this identity. After reviewing the documents, I find no reason to doubt their authenticity.

[10]   I note that, once in Canada, the claimant delayed approximately two years before seeking refugee protection. He arrived in Canada in XXXX of 2017 with a student visa and made a claim for refugee protection in XXXX of 2019. I also note that the claimant was a XXXX attending XXXX school at the time of his arrival in Canada. The claimant has explained that once in Canada he sought out community and peer supports for transgender people, and it was in this context that he received advice about applying for refugee protection. Despite this, however, the claimant also explained that he maintained hope that his parents would change their minds and support him. I find that the claimant’s explanation for not seeking refugee protection immediately upon his arrival in Canada to be reasonable. I note that the claimant was a XXXX who was in Canada legally, with a valid study permit, and was in no danger of being deported to Iran. Given the claimant’s circumstances and explanations, I find that it is not reasonable to draw a negative inference with respect to subjective fear or credibility because he did not seek protection sooner.

Objective basis

[11]   To establish one’s status as a Convention refugee or as a person in need of protection, a claimant must show that there was a serious possibility that they would be persecuted, or on a balance of probabilities be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if removed to their country of origin – in this case Iran. I find the claimant has met that burden.

[12]   The claimant has established his transgender identity. I have considered the claimant’s gender identity in conjunction with the documentary evidence discussed below and find that the claimant has amply established a prospective risk of persecution. Further, by reference to the SOGIE Guideline and the claimant’s evidence, it is apparent that the claimant has engaged throughout his life in a significant measure of behavioural self-censorship. Protecting oneself through continued self-censorship constitutes a serious interference with fundamental human rights. The claimant was unable to live openly as a transgender man in Iran. This provides a further basis for the well-founded fear of persecution by reference to Guideline 9.14 A person cannot be expected or required to conceal their gender identity orientation as a way to avoid persecution in their country of reference.

[13]   As noted above, the risk the claimant alleges is corroborated by the objective country conditions evidence provided by the claimant and in the National Documentation Package (NDP) before me.15 Iran is an authoritarian theocratic republic with a governmental human rights record that is extremely poor. The country conditions evidence amply establishes that transgender persons face discrimination in law and practice and are inadequately protected against violations to their human dignity and integrity. The documentary evidence indicates that transgender persons in Iran are harassed, abused, discriminated against, persecuted, and prosecuted by society and the state, reflecting the persistence of official and societal mistreatment based on sexual orientation and gender identity.16 Even in the absence of evidence of past mistreatment, which the claimant has provided, I find that he would face a serious possibility of persecution in Iran.

[14]   Transgender persons in Iran are considered to have a disorder that must be treated medically, via hormone treatment and sexual reassignment surgery (SRS). This perspective, however, perpetuates harms against both persons who do seek SRS and those who do not. According to a DFAT report, the law does not prohibit discrimination based on sexual orientation and gender identity, and no criminal justice mechanisms exist to prosecute those accused of committing hate crimes against LGBTI persons.17 Post-surgery, transgender persons are advised to maintain discretion about their past due to stigma associated with being transgender. Only after SRS has been completed and legal documents (including identity card, birth certificate and passport) adjusted is a person legally allowed to dress according to the opposite sex and to move into the spaces reserved for this sex.18

[15]   Persons, including the claimant, who do not wish to undergo complete SRS are subjected to Iran’s laws relating to “homosexuality”. The country conditions evidence also reflects “a strong societal taboo against homosexuality. International LGBTI (lesbian, gay, bisexual, transgender and intersex) NGOs report that many young gay men face harassment and abuse from family members, religious figures, school leaders, and community leaders. Authorities have reportedly expelled individuals from university for alleged same-sex relations.” Sexual minorities are unlikely to obtain protection from state officials, and may face harassment, abuse or arrest should they come to the attention of security forces. Both gay men and lesbians face considerable societal pressure to enter into a heterosexual marriage and produce children.19, 20

[16]   It is quite clear from the country conditions evidence that transgender persons, and persons who are perceived as transgender by broader society, are likely to experience violence and abuse by both state and non-state actors. For instance, transgender persons are often arrested for not wearing the mandatory hijab. This evidence is consistent with the claimant’s past experiences of mistreatment by his family, school officials, classmates, health care officials and others who were unwilling to accept and respect his gender identity. Further, members of the trans community in Iran are targeted by the state based on alleged engagement in acts prohibited under the state’s interpretation of Sharia law, such as same-sex sexual activities. For the claimant, this means any intimate relationship with a woman will be subject to criminal sanction.

[17]   Based on the evidence before me, I find that the claimant has a well-founded fear of persecution and faces a serious possibility of persecution by both state and non-state actors if he were to return to Iran.

State Protection

[18]   A claimant is required to approach the state to access state protection if protection might be reasonably forthcoming or it is objectively reasonable for them to have sought state protection. The state is an agent of persecution in this claim. As such, I find it would be objectively unreasonable for the claimant to seek the protection of the state, particularly given that the documentary evidence demonstrates that the state does not provide adequate protection and the state is reported to harass and abuse transgender persons in Iran.

Internal flight alternative

[19]   I find that there is no viable internal flight alternative for the claimant. In this case the claimant fears both state and non-state actors. The officers who are tasked with protecting the citizens of Iran are, in the case of transgender persons, targeting and persecuting them. There is nowhere in Iran where the claimant could live without this fear. I find that the claimant faces a serious possibility of persecution throughout Iran.

CONCLUSION

[20]   I conclude that the claimant is a Convention refugee, pursuant to section 96 of the IRPA and I accept this claim.

(signed) Jennifer Smith

September 8, 2021

1 Exhibit 2

2 Exhibit 1

3 Exhibit 3, National Documentation Package (NDP), Iran, April 16, 2021.

4 Exhibits 4 -7.

 5 IRB Chairperson’ s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa, Canada, March 1993, updated November 1996, Section C.4.

6 IRB Chairperson’s Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Ottawa, Canada, updated May 1, 2017.

7 Exhibit 1.

8 Kusmez v. Canada (Citizenship and Immigration),2015 FC 948.

9 Exhibits 1 and 4.

10 Exhibit 4.

11 Exhibit 6.

12 Exhibit 5.

13 Exhibits 4-8.

14 At para. 8.5.1.1.

15 Exhibit 3, National Documentation Package (NDP), Iran, April 16, 2021.

16 Exhibit 3, items 1.8, 2.1, 6.1, 6.2, 6.3, 6.5, 6.6, 6.8; Exhibit 4; Exhibit 8.

17 NDP 1.8

18 NDP 1.8

19 Exhibit 3, item 1.8

20 Exhibit 3, item 2.1

Categories
All Countries Iran

2020 RLLR 145

Citation: 2020 RLLR 145
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2020
Panel: Isis Van Loon
Counsel for the Claimant(s): Amir Derakhshanfar
Country: Iran
RPD Number: VC0-00019
Associated RPD Number(s): VC0-00031, VC0-00034, VC0-00035
ATIP Number: A-2021-01106
ATIP Pages: 000178-000183

DECISION

[1]       MEMBER: I have considered your testimony and the other evidence in this case, and I am ready to render my decision orally.

[2]       These are the reasons for the decision in the claim of [XXX], the principle claimant, [XXX], the associate claimant, and their two adult female children, claimants [XXX] and [XXX] who are all claiming to be citizens of Iran and are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       These claims were joined according to rule 55 of the Refugee Protection Division Rules.

Allegations

[4]       The claimants’ allegations are set out in their basis of claim forms and in their testimonies. The following is a brief summary:

[5]       The principle claimant and both of her adult daughters are Christian converts, and they fear persecution due to their conversion from Islam. The associate claimant does not identify as Christian but believes that people should be able to choose their own religion freely. Furthermore, he acknowledges a belief in God, but is not a follower of Islam as it is required in Iran.

Determination

[6]       I find that the claimants are convention refugees as they have established a well-founded fear of persecution based on convention grounds. Namely religion in the case of the principal claimant and the two adult children claimants and political opinion in the case of the associate claimant.

Analysis

Identity

[7]       I find the claimants’ identities as nationals of Iran is established by their testimonies and the supporting documentation filed including certified true copies of their passports in Exhibit 1.

Credibility

[8]       When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness. However, this presumption does not apply to inferences or speculation for which there is no evidentiary basis.

[9]       The claimants testified in a straightforward and detailed manner and with no inconsistencies in their testimonies or contradictions between their testimonies and the other evidence before me that were not explained.

[10]     The female claimants all described in detail their beliefs and contrasted that with the religion into which they were born in Iran. The principle claimant said, “If we say that we are God’s children in any other religion, meaning our previous religions, if I were to say this, that I am a child of God, they would punish me.  They would never allow me to continue with my life.  Now, I am certain that God, the father, supports me.” Her daughters echoed the support that they feel from their new religion, particularly while their mother was facing a serious health challenge.

[11]     The associate claimant described how he found out about his family’s conversion, and he expressed his tolerance for other religious views. He credibly described how he wished he had known about this conversion sooner and clearly supported his family members’ rights to make their own decisions about religion. As for himself, he explained that he had not converted, although he had learned a fair bit about Christianity from his family, and he remains open-minded.

[12]     I have found all of their explanations and descriptions to be compelling and clear. Furthermore, they provided the following relevant probative documents: There is a letter on page 17 of Exhibit 4 from [XXX] (ph) from [XXX] in [XXX] in the Calgary Assembly of [XXX] and [XXX] Church. The principle claimant has been attending since [XXX] 2018. Her daughters joined afterwards.

[13]     The Pastor said that the principle claimant, “gave a beautiful testimony during a Sunday church service in regard to how she became a believer in Jesus Christ and accepted him as her personal saviour” and studied for baptism on [XXX] of 2019. Then she joined the Bible study group according to the Pastor. The Pastor said that the daughters were baptized on [XXX] of 2020 and that they too gave public testimony of their faith in Jesus Christ.

[14]     I find these documents are relevant and served to corroborate the core allegations of the three female claimants that they are Christian converts. The narrative and testimony of the claimants corresponds to the ample objective evidence about conditions in Iran pertaining to converts from Islam as well as those who oppose the government-imposed religion.

[15]     Apparently I have no reason to doubt the central elements underpinning the claim for protection nor the claimant’s stated subjective fear. I found all four claimants to be credible witnesses and therefore have accepted as true the facts that they have alleged in support of their claim.

Nexus

[16]     I find the persecution the principle claimant and her adult daughters face has a nexus to one of the five convention grounds, that of religion. And I find that the associate claimant has established a nexus to political opinion and therefore this claim will be assessed under s. 96.

[17]     I acknowledge that the principle claimant and the two adult children as women also have a nexus to membership in a particular social group as women in Iran and that the associate claimant could also be considered for membership in a particular social group as a family member of claimants facing persecution on a convention ground.

[18]     However, I have found the respective nexuses to religion and political opinion are sufficient for me to decide this claim for asylum, and therefore, I have analyzed the claims solely on these grounds.

Well-Founded Fear

[19]     In order to be considered a convention refugee, a claimant must describe that they have a well-founded fear of persecution which includes both a subjective and an objective basis.

[20]     Based on the claimant’s testimonies and supporting documents as well as the country condition documents, I find that all four claimants have a well-founded fear of persecution for the following reasons:

[21]     The principle claimant started attending church in Canada around [XXX] of 2018 with her Canadian relatives who were Christians, but she did not convert at the time.  She returned briefly to Iran in [XXX] of 2019 to have her visa extended and then came back to Canada to stay with her daughters. She became more involved with Christianity through her family members and by attending church and decided to convert. However, she feared telling her husband who was still in Iran, the associated claimant, over the phone as this was risky.

[22]     Her daughters, as well, became increasingly interested in Christianity after seeing the positive changes in their mother that her Christianity had brought to her. After the associate claimant came to Canada in [XXX] 2019 having been threatened, he was able to confirm his family’s conversion to Christianity, and all four of them claimed asylum while their visitors and student visas respectively were still valid. Their actions in addition to the amply country condition documents below have established their subjective fear of persecution in Iran.

[23]     The country documentation is consistent with the claimant’s testimonies and fearing persecution in Iran due to the conversion of three of the claimants to Christianity and due to the forth claimant’s opposition to this persecution and beliefs that religious freedom is important.

Religion

[24]     The law prohibits Muslim citizens from changing or renouncing their religious beliefs. Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy, and this is a crime punishable by death.

[25]     Amnesty International stated in June 2019, “Freedom of religion and belief continues to be systematically violated.  The authorities impose on people of all faith as well as atheists codes of conduct rooted in a strict interpretation of Shia Islam. The right to change or renounce religious beliefs continues to be violated with those converting from Islam being at risk of arbitrary detention, torture, and even the death penalty.”

[26]     The Australian Department of Foreign Affairs and Trade assesses that those accused of religiously based charges are also likely to face charges related to national security, and they are unlikely to have adequate legal defence and are likely to be convicted.

[27]     While Shia jurors generally hold only that male apostates are to be killed, females on the other hand may only be imprisoned. The US Department of State says that prison conditions were harsh and life-threatening due to food shortages, gross over-crowding, physical abuse, and inadequate sanitary conditions and medical care.

[28]     I am satisfied that regardless of whether a convert faces the death penalty or prison, the conditions and treatment are such that both amount to persecution. Based on all the evidence before me, I find the principle claimant and her two adult daughter claimants would face a serious possibility of persecution from the state due to the conversion from Islam to Christianity if they were to return to Iran.

Political Opinion

[29]     The associate claimant is in fact opposing the government’s religious requirements in his support for his family members who have converted to Christianity. He described being threatened and questioned about his family members’ religion in the months before he came to Canada. At that time, he was not even aware that they had converted as they had feared telling him over the phone that the authorities would discover this.

[30]     The associate claimant disagrees with the state position on religious freedom in Iran. He said that, “The Iranian regime needs to change based on the views in the constitution they” unlike himself, “do not accept any other religion or belief.” He said, “There needs to be an environment that allows people to choose their religion freely, to have their own beliefs, and be respected for it.”

[31]     The Islamic Republic of Iran is an authoritarian theocratic republic and imposes severe restrictions on many freedoms including religious freedom. The government’s human rights record remained extremely poor and worsened, and there were numerous reports of arbitrary killings and forced disappearances as well as torture by government agents, corruptions widespread at all levels of the government, and impunity is pervasive through all levels of government and security forces according to NDP 2.1 and 1.7.

[32]     I have noted that the associate claimant has expressed an opinion and is against the government of Iran by his support for religious freedom. Based on all the evidence before me, I find that he, too, would face a serious possibility of persecution based on this political opinion if he were to return to Iran.

[34]     I also note that he has vowed to stay with his family and were he to do so and they are still Christian converts, he would suffer persecution as well for that reason.

State Protection and Internal Flight Alternative

[35]     In this case, the agent of persecution is the state. The persecution the claimants would face if returned to Iran is at the hands of the authorities, and accordingly, I find there is no state protection available to the claimants, and the presumption of state protection is rebutted.

[36]     The state of Iran is in control of all of its territories, and therefore, again on the evidence before me, I find that there is a serious possibility of persecution throughout Iran. There is no viable internal flight alternative for these claimants in their particular circumstances.

Conclusion

[37]     Based on the totality of the evidence, I conclude that the claimants are convention refugees, and accordingly, I am accepting all of their claims.

[38]     Okay, so that is the end of my decision. Interpreter, if you would like to go ahead and give a summary. That would be very welcome.

[39]     INTERPRETER: Sure thing.

———————REASONS CONCLUDED———————

Categories
All Countries Iran

2020 RLLR 137

Citation: 2020 RLLR 137
Tribunal: Refugee Protection Division
Date of Decision: October 8, 2020
Panel: Michael Somers
Counsel for the Claimant(s): Zohra Safi
Country: Iran
RPD Number: TB9-28317
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000134-000137

DECISION

[1]       MEMBER: The Panel has considered the claimant’s testimony and other evidence in this case and is ready to render its decision orally.

[2]       The claimant is a citizen of Iran. He has made a refugee protection claim under Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

Allegations

[3]       The specifics of the claim are stated in the claimant’s narrative and amended narrative, of course, the narrative is found in his Basis of Claim form (BOC). He alleges the following:

[4]       He is a citizen of Iran. He has recently been divorced. He is a well-educated individual. He has an [XXX] in [XXX] as well as a [XXX] an [XXX] in [XXX]. He has worked in Iran as a [XXX] for at least, maybe, eight years. However, I don’t think he would disagree by saying that he is more of a [XXX] than anything else.

[5]       He fears to return to Iran. He fears the Iranian government; that he has been targeted, persecuted, by the Iranian authorities due to his affiliation to [XXX] and, also due to his religious affiliation, that he is Dervish Sufi.

[6]       He is, what I would describe as, an accomplished [XXX] who has gone through, what I would say, a formal background, a formal teaching, in [XXX]. He didn’t go to university for that. He has won, what sounds like, local and regional, maybe even national, [XXX]. He has entertained abroad. His group – he has produced at least [XXX].

[7]       In about 2010 he, how he would describe it, officially became Dervish. Although, he was interested in learning and participating in the Dervish community years before that. And, in his particular fact situation, that he has been incarcerated, charged with what I would call fabricated allegations and was sentenced to at least one year in jail. Once released from jail he realized, or even probably before that, that the Iranian authorities would continue to harass, target him, based on his religious affiliation and, also his political affiliation.

[8]       He left Iran on or about [XXX] 2019, and made a claim for refugee protection on or about [XXX] 2019. He left his former wife in Iran with the intention of his former wife coming to Canada and reuniting with him. However, due to pressure from his in-laws, pressure on his wife, and just not the pressure on his wife but the wife, his former wife, herself, due to his activities, due to his religion, due to incarceration, there was a divorce recently.

Determination

[9]       The Board finds that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act. The reasons are as follows.

ANALYSIS

[10]     The Board is concerned with the issues of credibility and state protection.

Identity and Credibility

[11]     The Board was satisfied with the claimant’s personal identity based on his testimony and a certified copy of his passport and other secondary identification documents that were filed on his behalf.

[12]     The Board found the claimant to be a credible and reliable witness. There was no significant differences between his testimony and his narrative and the numerous personal documents filed on his behalf.

[13]     One could describe this claim as a claim that has two premises or two, basically, fears/reasons why he is leaving Iran and coming to Canada to seek international asylum, refugee protection. One, being a [XXX] which that his [XXX] doesn’t fit within the context of Iranian society and the rigid perception and attitude of the Iranian authorities towards [XXX] and, well, [XXX]. Second, is that he is Dervish, he’s Sufi. In fact, in his testimony, which again the Board found credible, he sort of put the two together as well, that they mesh, that being Sufi, being Dervish, and the meditation process, the calmness, the peacefulness, erased blocks and made him a better [XXX]. And he indicated that his [XXX] was not for the regime, it was not for anyone but himself and his spiritual beliefs and his worship to humanity and that includes God. And because of these two purposes, these two reasons, he is being pursued, harassed, by the authorities.

[14]     The Board found that he is indeed a [XXX], this is based on his testimony, on the numerous documents, on his activities in Canada, on the documents on the websites that show him as a [XXX]. He is a [XXX], that’s a fact. Regarding his religion, is he Sufi? Is he Dervish? The answer is yes. On the evidentiary standard that this Board has to use, on a balance of probability, he is. I found his testimony when he was talking about, very briefly about, the Dervish principles, the religion, the environment, the culture, I found it to be, for him to be, articulate and not vague in his testimony and there was a truthfulness in his testimony, in his convictions, when he was talking which was certainly, was not made up. So, on a balance of probability, he is Dervish.

[15]     One then looks at the country condition articles and reports that have been filed, both by counsel and the Refugee Protection Division. Well, and one should note particularly for the Refugee Protection Division’s articles, many of those articles are from well respected international human rights organizations like Amnesty International, Human Rights Watch, and then there’s reports from agencies, state departments, from well-respected Western democracies such as this very country, Canada, Finland, United Kingdom, United States and they all state the same. And what is that? That there is – that the Dervish community, in fact, one should say all minority religious communities in Iran, are persecuted, are targeted, are looked in a very restrictive way.

[16]     Also, these articles and reports state, again clearly, that musicians are targeted. That, for some reason, the Iranian authorities see musicians as dangerous. Particularly, that they are perceived, that their music touches upon politics, more so freedom of association, freedom of expression; many things that this regime sees as threatening to them. So, the country condition articles, this Board finds that the country condition articles, his testimony, the personal documents filed, finds that if the claimant did return that he would have a well-­founded fear of persecution.

[17]     I don’t think there’s any need to get into the specifics of the persecutions or the lack of state protection in Iran that is directed towards religious minorities and, in particular, the Dervish community. It’s in many articles. Same with discrimination, harassment that amounts to persecution directed towards musicians. Simply put, what the claimant was testifying to, what his allegations and his claims were stating, is supported by what’s in the country condition articles and reports. The, at best, could be described as a Kangaroo Court that the claimant stood in for a short period of time; it must have been horrific. But again, the country condition articles and reports state exactly that, that that happens. And again, I found the testimony of this particular claimant to be credible.

[18]     So, there’s a – the claimant has met the presumption that there is no adequate state protection within Iran with clear and convincing evidence, particularly given that the agent of persecution is the state.

[19]     Regarding the issue of internal flight alternatives, well there is none. Why? Because, again, the state is the agent of persecution.

CONCLUSION

[20]     Based on this brief analysis, the Board finds that the claimant is a Convention refugee and accepts his claim. This hearing is over.

Categories
All Countries Iran

2020 RLLR 113

Citation: 2020 RLLR 113
Tribunal: Refugee Protection Division
Date of Decision: September 16, 2020
Panel: Liyusew Kidane
Counsel for the Claimant(s): Bahman Azimi
Country: Iran
RPD Number: TB9-31677
Associated RPD Number(s): TB9-31742
ATIP Number: A-2021-00945
ATIP Pages: 000188-000191

DECISION

[1]       MEMBER: This is a decision for [XXX], file number TB9-31677, and [XXX] file number TB9-31742. I have considered your testimony and the other evidence in this case and I am ready to render my decision orally.

[2]       The principal claimant, [XXX], and the minor claimant, [XXX], claims to be citizens of Iran and are claiming refugee protection pursuant to Sections 96 and 97 sub – Subsection 97(1) of the Immigration and Refugee Protection Act.

[3]       INTERPRETER: Sorry, can you keep the sentences short please so I can? I got this one but still.

[4]       MEMBER: I – I was wondering, is it possible for you to translate simultaneously so that I can read the decision for the record and the claimant will also receive the decision in writing. Do you know how?

[5]       INTERPRETER: It’s going to be a little hard. No. I can’t do that.

[6]       MEMBER: Okay, umm. Okay, I’ll read it in parts then.

[7]       INTERPRETER: Thank you, sir.

[8]       MEMBER: The principal claimant, [XXX], and the minor claimant, [XXX], claims to be citizens of Iran and are claiming refugee protection pursuant to Sections 96 and Subsection 97(1) of Immigration and Refugee Protection Act. The principal claimant was appointed as the designated representative of the minor claimant. In considering this matter, I have considered Chairperson’s Guideline on women refugee claimants and child refugee claimants.

[9]       INTERPRETER: I didn’t get that, sorry. Can you please speak a little louder?

[10]     MEMBER: Okay, umm. Counsel, this decision will be sent in writing. Would you ⁠– is it possible for you to translate to them when in your office when you receive it? Or, they…

[11]     COUNSEL: Yes. Is it the (inaudible)? As long—I mean at the end of the day I think they want to know whether the decision is positive, I think today.

[12]     MEMBER: It is positive.

[13]     COUNSEL: It’s positive?

[14]     MEMBER: Yes.

[15]     COUNSEL: Okay.

[16]     MEMBER: Okay.

[17]     CLAIMANT: Thank you. Thank you.

[18]     COUNSEL: . Okay, so I will read it to them in (inaudible) because of the mask and all these little logistics, it’s difficult to hear you (inaudible).

[19]     MEMBER: Yes. I appreciate that. I appreciate that, counsel.

[20]     CLAIMANT: Thank you so much.

[21]     MEMBER: Determination.

[22]     CLAIMANT: Thank you.

[23]     MEMBER:

Determination

[24]     I find you are both refugee Conventions for – Convention refugees for the following reasons:

[25]     I find that the claimants have established a serious possibility of persecution on the grounds of their membership to a particular social group, namely women facing gender-based violence due to their position to discrimination of women in Iran. Particularly, Iran’s dressing code. In light of this finding, the Panel has not assessed whether the claimants were victims of domestic abuse in Iran.

[26]     The allegations of the claims are found in the Basis of Claim form. In summary, the principal claimant allege that she fears harm in Iran at the hands of her husband. And you alleged you are your husb ⁠– you ⁠– you allege that your husband was abusive, and you fear this abuse will continue if you were to return to Iran. The minor claimant also fears abuse at the hands of her father.

[27]     The principal claimant testified that the claimants do oppose the Iran ⁠– Iran’s laws that compel women to wear hijab.

Identity

[28]     Your identities as citizens of Iran have been established on a balance of probabilities through your testimony and the certified true copy of your passport found in Exhibit 1.

Credibility

[29]     Overall, I found you, the principal claimant, to be a credible witness on a balance of probabilities. Your testimony was straightforward and spontaneous. There was no material inconsistency in your testimony. Also, I note that you did not embellish your testimony.

[30]     You have testified that women in Iran do not generally have a place. That means they don’t have equal status or treatment in society. It is defined woman has no right to divorce and are forced to marry. You testified that your marriage was arranged through your family and you really didn’t have a choice to refuse. You were pressured into marrying your husband. You also testified that the minor claimant was harassed and bullied in school due to her preference to cut her hair short, wear boy’s jacket and t-shirts. You testified that women are not given value, their freedom of speech is limited, and they don’t have freedom of choice.

[31]     In contrast, you testified that you and the minor claimant have no ⁠– have not been wearing hijabs since you came to Canada. You testified that you are more comfortable without hijab. I note that the claimants appear before the Panel without hijab. Therefore, I find that on balance of probabilities the claimants oppose the Iran’s dressing code that restricts women’s freedom of choice. I therefore find that you are credible and I acc ⁠– I accept your allegations as credible in that you have established your – your and the minor claimant’s subjective fear.

Objective Basis

[32]     I find that your subjective fear has an objective basis based on the objective evidence before me. In the National Documentation Package for Iran, which is attached to Exhibit 3, Item 2.1 indicates that the law provides that a woman who appears in public without appropriate attire, such as the cloth scarf veil over head and a long jacket, or a large full-length cloth covering legs cloth covering, may be sentenced to flogging and fined.

[33]     Item 5.4, in the NDP, states that there’s no legal definition of what constitutes appropriate hijab. Generally, girls as young as seven years old are required to wear proper hijab. This document further states the policing of women bodies is not confined to the State. Iran veiling laws have enabled thugs and vigilantes who feel they have the duty and the right to enforce Islamic Republic values to harass and assault women in public. As a result, on a daily basis, women and girls face random encounters with strangers who beat and pepper-­spray them, call them whores and make them pull their headscarves down to completely cover their hair.

[34]     The Panel therefore finds an objective and subjective basis to the claimants’ fear regarding the compulsory hijab on the balance of probability.

State Protection

[35]     State protection would not be reasonably forthcoming as authorities themselves are the agents of persecution.

Internal Flight Alternative

[36]     Given that the State is the agent of persecution, there is no internal flight alternative in the claimants’ circumstances.

CONCLUSION

[37]     Based on a totality of evidence, I find the claimants are Convention refugees. I therefore accept their claims.

[38]     Thank you and good luck.

———- REASONS CONCLUDED ———-