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———-