2023 RLLR 158
Citation: 2023 RLLR 158
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2023
Panel: Ayoni Shaibu
Counsel for the Claimant(s): Peter R Neill
Country: Iran
RPD Number: TC3-02761
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A
DECISION
MEMBER
INTRODUCTION
[1] This is the decision of the Refugee Protection Division for XXXX XXXX. You allege you’re a citizen of Pakistan and you’re claiming refugee – sorry, a city of Iran and you’re claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act. I’ve considered and applied the Chairperson’s Guideline 9 in the hearing and determination of this claim. I’ve also considered your testimony and the other evidence including your counsel’s submission and I’m ready to render my decision orally. The written decision will come to you shortly in the mail.
ALLEGATIONS
[2] The full details of your allegations are set out in your Basis of Claim form as amended found at Exhibit 2, 2.1 and 2.2. In summary you allege fear of harm at the hands of the Iranian authorities due to your sexual orientation as a homosexual. You allege that you’ve – you realized in your teen years that you were different from other boys around you. At the time boys were chasing after girls but you did not have any interest and preferred to be with the same sex. You allege that at the age of 15 you built up courage and came out clean to your parents and told them about your sexuality which they accepted because they are liberal and they agreed to support you.
[3] You allege that you’ve had only one (1) same-sex relationship and that this began in XXXX of 2020. After you had received information about the refusal of your visa and you had become XXXX about the development. You always wanted to – about the development. You allege that that relationship started in XXXX of 2020 and in XXXX of 2021 while at a party with your partner and with a mutual friend you were arrested and detained by the authorities. You allege that you were also sexually assaulted during your detention. You were released and after that experience you – your XXXX XXXX declined and on the recommendation of your parents you went to Turkey in XXXX of 2021 where you remained until XXXX of 2022.
[4] You allege that during this period you mutual friend, XXXX (ph), informed you that he was in Canada, alleged that in XXXX of 2022 your father also received a call from an intelligence officer asking about the relationship between yourself and your partner. And in XXXX 2022 your visa, (inaudible) visa to Canada was issued but your father advised you to remain in Turkey. During this period or this month your partner visited you in Turkey.
[5] In XXXX of 2022 you returned briefly to Iran to visit your family and then you came to Canada and in Canada you heard in XXXX of 2022, sorry, in Canada in XXXX 2022 you learnt that from your father that you had also received a summons like your partner who received one (1) in XXXX of 2022. You fear returning to Iran for this reason.
DETERMINATION
[6] For the reasons that follow I find you’re a Convention refugee pursuant to Section 96 of the Act as there exists a serious possibility of persecution should you return to Iran on account of your sexual orientation.
Identity
[7] I find your identity as a citizen of Iran is also established on a balance of probabilities by your oral testimony and your (inaudible) Iranian passport found at Exhibit 1.
Nexus
[8] I find there’s a link between your alleged fear of harm and at least one of the Convention grounds, namely your membership in a particular social group based on your sexual orientation as a homosexual. I therefore assessed your claim pursuant to Section 96 of the Act.
Credibility and Subjective Fear
[9] Pursuant to the Maldonado principle in refugee claims when a claimant swears the truth of their allegations this creates a presumption that those allegations are true unless there’s a reason to doubt their truthfulness and I find you having heard your testimony to be a credible witness overall and I believe what you’ve alleged in your oral testimony and in your Basis of Claim form. Your testimony was spontaneous and you were forthright in your responses. You made several attempts to correct little details like dates when you perceived that it was wrongly communicated. I did not observe any major omissions or inconsistencies between your oral testimony, your Basis of Claim form as amended or the documents that you have provided before the Board.
[10] I had concerns with your return to – your return to Iran from Turkey and you did explain that you only spent a week in Iran and you did not move around, you were only with your family. I’ve considered your counsel’s submission on this issue as allowed the fact that your stay in Iran was not a long one and you took measures to keep yourself safe. I did not draw a negative inference from your return to Iran, I find it does not significantly undermine your subjective fear.
[11] I’ve also considered the fact that you were in Turkey for about eight (8) months and you did not make a claim there. I notice from the objective evidence from – for Turkey that persons with sexual orientation are not free to – are not free to express – are not free to express their sexual orientation safely in Turkey. This was not the reason why you did not make your claim in Turkey, you felt that you were not seriously at risk at the time even though you were afraid. I do not make a negative inference given the circumstances which I’ve just described.
[12] Other than these two (2) concerns like I mentioned earlier your testimony was straightforward and was consistent with your documents. You were able to speak to your sexual identity and what it means to you. You were also able to testify about how you were able to come out to your parents and you have expressed that sexual identity in Iran and also in Canada.
[13] You testified about your relationship. You were able to speak eligibly about your partner including telling me about his date of birth. You were also able to speak about how you met and how the relationship started. You also testified about your detention and the incidents which occurred between your detention in – just one (1) moment, in XXXX. In XXXX of 2021 (inaudible).
[14] You provided an electronic summons and that the electronic summons does not state on the face of it the reason why you were being summoned, it just includes that you should provide – give explanation. You should appear to give explanation. You testified that is the expiration of the date to appear stated on the face of the summons that your father has received – give me one (1) moment – has received follow up visits from the authorities.
[15] You allege that you believe that you received that summons because your same-sex partner has also received the similar summons and his father had checked with the authorities and been informed that the summons was issued because of his sexual orientation.
[16] I’ve considered this explanation and I have no reasons to doubt the authenticity of the electronic summons. I find based on the explanation which you have given – I’ve assigned weight to the electronic summons based on the explanation which you have given. It does corroborate your testimony that the authorities are looking for you.
[17] Aside from this document which is filed at Exhibit 5, you provided other documents including your birth certificate which speaks to your identity. There’s also Turkey border stamps on your passport which shows you’re mobile between Turkey and Iran and there’s also the electronic summons which I mentioned, there’s pictures of you at Pride parade in Canada, pictures of you with your same-sex partner in Canada as well as your mutual friend in XXXX of 2022 after you arrival in Canada.
[18] There’s a birth certificate of your father showing the relationship between you two and there’s a support letter from your father as well as his Iranian passport which corroborates your allegations of your profile as a homosexual and targeting by the authorities. There’s a support letter from your same-sex partner as well who is in Canada, also a refugee claimant (inaudible) in a relationship with you and being detained by the authorities.
[19] I note it doesn’t speak about the summons but I do not make any adverse inference. I believe that the – I find that the documents which I have seen including your oral testimony which was straightforward and credible sufficiently established your profile.
[20] There’s also a letter from your mutual friend which also attests to knowing about your sexual orientation in Iran and here in Canada. Like I mentioned I do not have any reasons to doubt the authenticity of this document and I’ve assigned them full weight. I find you have credibility established your profile as a homosexual in Iran and here in Canada and I find your subjective fear on a forward looking basis is established.
[21] I’ve considered the objective basis for your claim and this regard I’ve considered Item 2.1 of the National Documentation Package for Iran found at Exhibit – Exhibit 3. I find it corroborates your fear of returning to Iran based on your sexual orientation.
[22] Item 2.1 indicates that consensual same-sex sexual activity is criminalized under Iranian law and punishable by death (inaudible) or a lesser punishment. This is also corroborated by Item 6.6 of the objective evidence for Iran. The same item, 6.6, indicates that there are no laws prohibiting discrimination on the basis of sexual orientation and same-sex civil unions or marriages are prohibited and same-sex couples cannot adopt children in Iran.
[23] This objective evidence, Item 6.6 also reports that minorities are reluctant to report crimes against them for fear of revealing their sexual orientation and being criminalized. It reports of abuses being perpetrated by even younger men to judiciary and nonstate actors such as (inaudible) communities and families. It reports that sexual minorities face threats, blackmail and extortion, harassment, forced marriage or threats of forced marriage, pressure to undergo gender changes, violence and (inaudible) by state and nonstate actors as well.
[24] It reports that the state attitude, with respect to state attitude and treatment it reports that public officials have consistently denounced same-sex relationships describing them as sub – describing them as subhuman, deviant and diseased. It also reports that even Iran security forces rely upon discriminatory laws to harass, arrest and detain those they suspect of being sexual minorities and they subject them to a variety of abuse.
[25] It reports of house raids and surveillance on individuals and internet sites are common in efforts to identify LGBTQ individuals and those that are arrested are commonly subjected to torture and ill treatment in order to extract confessions and most are denied their rights to a fair trial. This is consistent with your experience of being detained and being mistreated in detention.
[26] With respect to the society, Iranian society itself the objective evidence also indicates that the Iranian society does not accept LGBTQ persons and many find – many sexual minorities find themselves subject to familial violence, societal discrimination, abuse, harassment and in some cases physical attacks with no criminal justice mechanisms to prosecute those accused of hate crimes against the community.
[27] Given the state of the objective evidence and the absence of laws criminalize – prohibiting discrimination against persons based on their sexual orientation in Iran I find that your fear of persecution in Iran is objectively well-founded.
[28] I’ve considered state protection, whether adequate state protection will be forthcoming to you as a sexual minority in Iran. I find the objective evidence indicates that the laws do not – same-sex conduct is criminalized in Iran. It will be unreasonable to expect the states to protect you considering the state is the primary agent of persecution here.
[29] I find that the state protection would not reasonably be forthcoming to you under the circumstance.
Internal Flight Alternative
[30] Item 6.6 which I mentioned earlier indicates that even those that are openly sexual minorities they face hostility from both the state and society throughout the country and there is unlikely to be any place in Iran to which an LGBTQ person could reasonably relocate.
[31] I find that given that the primary agent of persecution is the state, given there is a summons out by the authorities I find there is no place where you (inaudible) in Iran even in the absence of the summons where you can freely and safely express, openly express your sexual orientation. For you to be able to live safely and freely in Iran you will need to hide your sexual orientation.
[32] For this reason I find you do not have a viable Internal Flight Alternative in Iran.
CONCLUSION
[33] Based on the totality of the evidence I find you are a Convention refugee pursuant to Section 96 of the Act and I accept your claim.
——— REASONS CONCLUDED ———