Categories
All Countries Iran

2019 RLLR 7

Citation: 2019 RLLR 7
Tribunal: Refugee Protection Division
Date of Decision: April 10, 2019
Panel: R. Bafaro
Counsel for the claimant(s): Nahid Rahini
Country: Iran
RPD Number: TB9-00256
Associated RPD Numbers: TB9-00268
ATIP Number: A-2020-01124
ATIP Pages: 000053-000057


DECISION

[1]       MEMBER: We are back on the record. During the break I had an opportunity to review, consider and weigh all of the evidence which is before me. I find that there is sufficient, credible and trustworthy evidence before me upon which to come to a decision in these refugee claims. I am going to accept these refugee claims.

[2]       MEMBER: Madame Interpreter could you do simultaneous translation please?

[3]       INTERPRETER; Yes I will.

[4]       MEMBER; Thank you very much.

[5]       The claimants [XXX] and [XXX] claim to be citizens of Iran and are claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

[6]       I have considered the chairperson’s sexual orientation guidelines in the conduct of this hearing. I find that the claim I find that the claimants are Convention refugees for the following reasons;

[7]       I find that the claimants have established a serious possibility of persecution based upon the Convention ground of a particular social group that is the sexual orientation of [XXX] as a lesbian woman and [XXX] as a gay man.

[8]       The allegations that form the basis for these refugee claims are set in the claimant’s basis of claim forms which are in evidence before me at Exhibits 2 and 3.

[9]       The central event which precipitated the flight of the claimants from Iran and their request for refugee protection in Canada was a gay, lesbian party which they attended in Iran before they left the country on [XXX] 2018.

[10]     Gay and Lesbian people were present at the party with other people as well their friends. The party was raided by the revolutionary guard when the claimants heard commotion, noise, screams. They were able to escape through the back door of the house where the party was being held. People were listening to music and people were drinking at this party. The claimant subsequently found out from the friends that people at this party were arrested, the male claimants partner was arrested at this party are some. The female claimant and her brother were able to escape through the back door and return to their parent’s home. They learned from their friends subsequently that people at the party had been arrested and charged by the authorities with drinking alcohol, with homosexuality and consuming drugs. So that is a summary of the core elements of these refugee claims.

[11]     The Identities of the claimants as citizens and nationals of Iran have been established by the certified true copies of their Iranian passports which are in evidence before me at Exhibit 1.

[12]     The main issue that I had to decide is the credibility of the claimants as it relates to their sexual orientation. Overall I’ve found that the claimants were credible witnesses on a balance of probabilities.

[13]     With regards to the core of their refugee claims that being members of the LGBT community on the basis of their sexual orientation. I therefore believe that what the claimants have alleged in support of their claim.

[14]     Both claimants testified here this morning they testified in a straightforward manner and I find that there are no major inconsistencies and their testimony or contradictions between their testimony and other evidence before me.

[15]     I find that their testimony with regards to their experiences as a lesbian woman and gay man were spontaneous and detailed and also I also find that the manner in which they expressed their experiences as a gay man and lesbian woman were clearly heartfelt.

[16]     Now um… although the claimants did not provide supporting documents to corroborate their sexual identity I don’t draw any adverse credibility inferences on that basis. The reason being that in Iran which is a very strict Islamic regime and a fundamentalist regime um… members of the LGBT community cannot express their sexual orientation openly in public. They are only able to express their sexual identities in private. It is also against the law in Iran for men and women to engage in sexual relations with the same sex.

[17]     The female claimant I find did have a reasonable explanation as to why she did not provide any documentation from her partner who has fled the country who was also at the party and is now presently in Turkey. Well first of all there’s a difficult, she’s having difficulty contacting her because the last time she spoke to her which was several months ago this is, she spoke to [XXX] (ph). [XXX] had actually contacted her by using a public phone, the female claimant doesn’t have a telephone number where she can reach the claimant. She also explained that because of [XXX] situation at the present time in Turkey which is rather unstable and because she finds herself in a poor condition that she didn’t think of asking her partner for a letter to corroborate her relationship with her.

[18]     I find that is a reasonable explanation for why we don’t have documentation to substantiate or corroborate the female claimant’s sexual orientation.

[19]     She also had another explanation for why she doesn’t have any documentation to substantiate her sexual identity. She said that when she was at this party she did have a purse and she had a phone and there were photographs on that phone of her partner, unfortunately all of those items were left behind at the party because , because of the raid which took place in which the revolutionary guard stormed the private residence and made arrests obviously the claimant, the female claimant wouldn’t have been in a position to be able to retrieve her purse, her personal effects, her belongings, her phone likewise the same situation applies to her brother who also had his purse there and who, which was also left behind.

[20]     So the other thing I wanted to mention about the credibility of the male claimant and the female claimant is that in Canadian refugee law there’s a presumption claimants are presumed to be telling the truth unless there’s persuasive evidence to the contrary. I find that in this instance there was no persuasive evidence to the contrary.

[21]     The Federal court has also talked about whether or not there is a requirement in Canadian refugee law for external corroboration in order to find a claimant to be credible and there was a case that went to the  Federal  court and  it’s very  recent, it’s a decision  of the  Federal  Court of Canada  [XXX] from a Mr [XXX] and in paragraph 28 of that judgement he said and I quote There’s no general requirement for corroboration and a panel errs if it makes an adverse credibility finding on the basis of the absence of corroborative evidence alone.” If there are valid reasons to question a claimant’s truthfulness the panel may also consider the claimants failure to provide corroborative evidence, that only where the claimant could not give a reasonable explanation for the absence of such evidence”.

[22]     Now in the case before me I find that because the claimants were generally credible there is no requirement that they provide corroboration and on that basis I do not make any adverse credibility findings based on the failure of the claimants to provide documentary corroboration as it relates to their sexual orientation.

[23]     In terms of the well foundedness of their fear of persecution in Iran I find that the claimants, I find that the claimants subjective here has a objective basis, based on the objective country documentation before me.

[24]     The documentary evidence before me on country conditions indicates that in Iran sorry that Iran is a seriously dangerous place for a lesbian, gay, bisexual, trans or queer person. These documents can be found at Sections 1 to 6.10 of Exhibit 4, which is the national documentation package for Iran.

[25]     Country conditions indicate that Iran is a deeply homophobic society that has severe anti homosexual statues and that it suffers from serious levels of ongoing anti-homosexual violence and persecution. Same document indicates that the Iranian authorities do not provide adequate protection to LCBTQ persons suffering serious human rights abuses of whatever nature in Iran, because the Iranian government and police tend to share and support the deep seeded homophobia found in Iranian society as a whole and those documents indicate that rather than protect Iranian police and authorities persecute LGBTQ persons.

[26]     The test in assessing your risk of harm is forward looking. You testified credibly about your fears regarding returning to Iran as a gay man or homosexual man and a lesbian woman and the treatment you would receive.

[27]     Your testimony was consistent with country conditions in Iran as reported in the documentary evidence. Thus I find there is a objective basis to support your fears based upon your membership in a particular social group of that being members of the LGBTQ community in Iran.

[28]     Having considered all this evidence in your testimony which I believe is credible I find your fear of persecution is well founded and you face a serious possibility of persecution in Iran due to your sexual orientation.

[29]     Given that it’s the Iranian government and authorities that you fear I find it would be objectively unreasonable for you to seek protection of the Iranian government in light of your particular circumstances. I also find that you face a serious possibility of persecution throughout Iran given that the documentary evidence shows that state authorities operate similarly throughout Iran, therefore I do not find that you have viable internal flight alternatives within Iran.

[30]     For all those reasons I can conclude that you are a Convention refugees and I accept your claims. This brings our hearing to a conclusion.

[31]     Thank you Madame Interpreter for your assistance.

[32]     Thank you everybody for your participation.

REASONS CONCLUDED