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