Category: Iran

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 ——————–

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

1 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.

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

1 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

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———-

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 ——————–

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