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.