Citation: 2021 RLLR 8
Tribunal: Refugee Protection Division
Date of Decision: September 8, 2021
Panel: Jennifer Smith
Counsel for the Claimant(s): Marcia Pritzker Schmitt
Country: Iran
RPD Number: VC1-05995
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000012-000018
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of XXXX (AKA XXXX) XXXX XXXX, a citizen of Iran who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).
[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) and paragraph 170(f) of IRPA.
[3] In deciding this claim, I have considered all of the evidence before me, including the Basis of Claim (BOC) form,1 the referral documents,2 the country of origin information contained within the National Documentation Package (NDP) for Iran3 and the balance of the claimant’s documentary evidence.4
[4] In rendering my reasons, I have considered and applied Chairperson’s Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution5 and Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression6 as it is, in my view, necessary to remain mindful of the intersecting relationship between gender, sexual orientation, and gender identity.
ALLEGATIONS
[5] The claimant alleges that he has suffered past harms, including threats and discrimination, from his parents, school officials, healthcare workers and society generally because his gender identity does not follow the norms of Iranian society. The claimant describes himself as a “trans guy” who was required to obey the rules as a “female” — which he describes as the binary gender he was born with.
DETERMINATION
[6] I find that the claimant is a Convention refugee, pursuant to section 96 of IRPA.
Identity
[7] I find that the claimant’s identity as a national of Iran is established by his sworn statements and the documents provided, including the certified copies of his passport in evidence.7
Nexus
[8] I note that Canadian jurisprudence and the Gender Guideline makes it clear that RPD members are to consider the interplay between multiple grounds of persecution advanced by a claimant.8 The claimant fears continued mistreatment due his actual and perceived gender identity and actual and perceived sexual orientation. I find that the persecution alleged by the claimant has separate and intersecting connections to the Convention, relating to the claimants’ membership in particular social groups.
Credibility
[9] Based on the evidence provided, I have noted no serious credibility issues. In particular, I am satisfied that the claimant has, through his statements and accompanying documentary evidence, established his transgender identity on a balance of probabilities. The relevant documentary evidence is extensive and includes the claimant’s birth certificate, passport and school documents,9 all of which indicate that the claimant was, at the time of the documents’ creation, identified by others as a female person. Other later documents include a social work report from XXXX 2018, counsellor’s report from 2020, a letter from the claimant’s girlfriend of several years10 a medical doctor’s letter from 202011 and support letters from a 2SLGBTQ+ Youth Outreach Worker and Youth Sexual Health Coordinator.12 These documents are consistent with one another regarding the claimant’s experiences and struggles relating to his gender identity and his efforts to seek medical and XXXX supports in Canada.13 These documents are also consistent with the claimant’s own accounts of his experiences and provide corroborative support for his stated gender identity and the past harms to which he has been subjected in relation to this identity. After reviewing the documents, I find no reason to doubt their authenticity.
[10] I note that, once in Canada, the claimant delayed approximately two years before seeking refugee protection. He arrived in Canada in XXXX of 2017 with a student visa and made a claim for refugee protection in XXXX of 2019. I also note that the claimant was a XXXX attending XXXX school at the time of his arrival in Canada. The claimant has explained that once in Canada he sought out community and peer supports for transgender people, and it was in this context that he received advice about applying for refugee protection. Despite this, however, the claimant also explained that he maintained hope that his parents would change their minds and support him. I find that the claimant’s explanation for not seeking refugee protection immediately upon his arrival in Canada to be reasonable. I note that the claimant was a XXXX who was in Canada legally, with a valid study permit, and was in no danger of being deported to Iran. Given the claimant’s circumstances and explanations, I find that it is not reasonable to draw a negative inference with respect to subjective fear or credibility because he did not seek protection sooner.
Objective basis
[11] To establish one’s status as a Convention refugee or as a person in need of protection, a claimant must show that there was a serious possibility that they would be persecuted, or on a balance of probabilities be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if removed to their country of origin – in this case Iran. I find the claimant has met that burden.
[12] The claimant has established his transgender identity. I have considered the claimant’s gender identity in conjunction with the documentary evidence discussed below and find that the claimant has amply established a prospective risk of persecution. Further, by reference to the SOGIE Guideline and the claimant’s evidence, it is apparent that the claimant has engaged throughout his life in a significant measure of behavioural self-censorship. Protecting oneself through continued self-censorship constitutes a serious interference with fundamental human rights. The claimant was unable to live openly as a transgender man in Iran. This provides a further basis for the well-founded fear of persecution by reference to Guideline 9.14 A person cannot be expected or required to conceal their gender identity orientation as a way to avoid persecution in their country of reference.
[13] As noted above, the risk the claimant alleges is corroborated by the objective country conditions evidence provided by the claimant and in the National Documentation Package (NDP) before me.15 Iran is an authoritarian theocratic republic with a governmental human rights record that is extremely poor. The country conditions evidence amply establishes that transgender persons face discrimination in law and practice and are inadequately protected against violations to their human dignity and integrity. The documentary evidence indicates that transgender persons in Iran are harassed, abused, discriminated against, persecuted, and prosecuted by society and the state, reflecting the persistence of official and societal mistreatment based on sexual orientation and gender identity.16 Even in the absence of evidence of past mistreatment, which the claimant has provided, I find that he would face a serious possibility of persecution in Iran.
[14] Transgender persons in Iran are considered to have a disorder that must be treated medically, via hormone treatment and sexual reassignment surgery (SRS). This perspective, however, perpetuates harms against both persons who do seek SRS and those who do not. According to a DFAT report, the law does not prohibit discrimination based on sexual orientation and gender identity, and no criminal justice mechanisms exist to prosecute those accused of committing hate crimes against LGBTI persons.17 Post-surgery, transgender persons are advised to maintain discretion about their past due to stigma associated with being transgender. Only after SRS has been completed and 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.18
[15] Persons, including the claimant, who do not wish to undergo complete SRS are subjected to Iran’s laws relating to “homosexuality”. The country conditions evidence also reflects “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.” Sexual minorities are unlikely to obtain protection from state officials, and may face harassment, abuse or arrest should they come to the attention of security forces. Both gay men and lesbians face considerable societal pressure to enter into a heterosexual marriage and produce children.19, 20
[16] It is quite clear from the country conditions evidence that transgender persons, and persons who are perceived as transgender by broader society, are likely to experience violence and abuse by both state and non-state actors. For instance, transgender persons are often arrested for not wearing the mandatory hijab. This evidence is consistent with the claimant’s past experiences of mistreatment by his family, school officials, classmates, health care officials and others who were unwilling to accept and respect his gender identity. Further, members of the trans community in Iran are targeted by the state based on alleged engagement in acts prohibited under the state’s interpretation of Sharia law, such as same-sex sexual activities. For the claimant, this means any intimate relationship with a woman will be subject to criminal sanction.
[17] Based on the evidence before me, I find that the claimant has a well-founded fear of persecution and faces a serious possibility of persecution by both state and non-state actors if he were to return to Iran.
State Protection
[18] A claimant is required to approach the state to access state protection if protection might be reasonably forthcoming or it is objectively reasonable for them to have sought state protection. The state is an agent of persecution in this claim. As such, I find it would be objectively unreasonable for the claimant to seek the protection of the state, particularly given that the documentary evidence demonstrates that the state does not provide adequate protection and the state is reported to harass and abuse transgender persons in Iran.
Internal flight alternative
[19] I find that there is no viable internal flight alternative for the claimant. In this case the claimant fears both state and non-state actors. The officers who are tasked with protecting the citizens of Iran are, in the case of transgender persons, targeting and persecuting them. There is nowhere in Iran where the claimant could live without this fear. I find that the claimant faces a serious possibility of persecution throughout Iran.
CONCLUSION
[20] I conclude that the claimant is a Convention refugee, pursuant to section 96 of the IRPA and I accept this claim.
(signed) Jennifer Smith
September 8, 2021
1 Exhibit 2
2 Exhibit 1
3 Exhibit 3, National Documentation Package (NDP), Iran, April 16, 2021.
4 Exhibits 4 -7.
5 IRB Chairperson’ s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa, Canada, March 1993, updated November 1996, Section C.4.
6 IRB Chairperson’s Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Ottawa, Canada, updated May 1, 2017.
7 Exhibit 1.
8 Kusmez v. Canada (Citizenship and Immigration),2015 FC 948.
9 Exhibits 1 and 4.
10 Exhibit 4.
11 Exhibit 6.
12 Exhibit 5.
13 Exhibits 4-8.
14 At para. 8.5.1.1.
15 Exhibit 3, National Documentation Package (NDP), Iran, April 16, 2021.
16 Exhibit 3, items 1.8, 2.1, 6.1, 6.2, 6.3, 6.5, 6.6, 6.8; Exhibit 4; Exhibit 8.
17 NDP 1.8
18 NDP 1.8
19 Exhibit 3, item 1.8
20 Exhibit 3, item 2.1