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 ——————–