2023 RLLR 96

Citation: 2023 RLLR 96
Tribunal: Refugee Protection Division
Date of Decision: February 2, 2023
Panel: Lynn Bonhomme
Counsel for the Claimant(s): Peter Wuebbolt
Country: Iran
RPD Number: TC2-18856
Associated RPD Number(s): N/A
ATIP Number: A-2024-00593
ATIP Pages: N/A

DECISION

[1]         MEMBER: I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. This is the decision for the following claimant, XXXX XXXX, also known as XXXX XXXX (ph). Your claim is accepted. 

[2]         COUNSEL: Thank you, Madam Chair. 

[3]         CLAIMANT (without interpreter): Thank you.

[4]         MEMBER: You are claiming to be a citizen of Iran and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. 

[5]         CLAIMANT (without interpreter): Thank you. 

[6]         MEMBER: Given the nature of this claim, I have taken into consideration the Chairperson’s Guideline for Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics. 

[7]         INTERPRETER: Sorry, Madam Member. Could you please repeat the last part of what you just said? 

[8]         MEMBER: Sexual orientation, gender identity and expression, and sex characteristics. 

[9]         INTERPRETER: Sorry, Madam Member. I still missed the last one (1). 

[10]      MEMBER: Sex characteristics. Given that it is a guideline, Madam Interpreter, I strongly recommend you become familiar with it. 

[11]      INTERPRETER: Sure, Madam Member. 

[12]      MEMBER: You will receive a non-edited transcript of this oral decision in the mail in approximately three (3) weeks. Your Counsel will also receive a copy and can answer any related questions you may have at that time. 

[13]      I find that you are a Convention refugee on the grounds of membership in a particular social group, namely transgender individuals, for the following reasons. 

Allegations

[14]      You allege the following. You are a citizen of Iran. You were born female but you identify as male and are attracted to women. You realized your gender identity and attraction to other girls as an adolescent. Your mother disapproved of your gender identification and took you to see a XXXX in Iran whom you saw for treatment over a one-year period. You have had two (2) relationships with girls in Iran. Your mother learned of your last relationship and threatened to report you to the Basij. You came to Canada to study in XXXX 2021 and have been identifying yourself to the community as a male and by your chosen name, XXXX. Your mother called you in XXXX 2022 and said she was disowning you due to posts you made on social media identifying your chosen gender. You made a claim for refugee protection shortly thereafter. 

Identity

[15]      Your personal identity as a citizen of Iran has been established by your testimony and the supporting documents filed in the exhibits, particularly the certified true copies of your Iranian passport and Canadian visa on file. I find that on a balance of probabilities you are who you say you are and that the country of reference is Iran. 

Nexus

[16]      I find that there is a link between what you fear and one (1) of the five (5) Convention grounds, membership in a particular social group as a transgender person and therefore I have only assessed the claim under section 96. 

Credibility

[17]      In terms of your gender credibility, I have found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim form. You testified in a spontaneous and straightforward manner and did not attempt to embellish your evidence. You were forthcoming with information and were able to provide relevant details when requested by me. You convincingly described how you feel about your gender and your struggles in Iran to express yourself as a boy to your parents. You testified about the efforts you have made in Canada to transform your identity to a male. You have submitted a letter from a doctor at the XXXX XXXX XXXX in Toronto dated XXXX XXXX, 2023, confirming that you had been XXXX XXXX XXXX XXXX XXXX XXXX since XXXX 2022. You testified about your fear of returning to Iran and being subject to harm at the airport and from your family, particularly your mother who has disowned you and told you that you have brought dishonour to the family. 

[18]      Based on all of the above, I believe on a balance of probabilities, I believe that you are a transgender male. I believe that although you were born female you have always felt like a male and that you are actively seeking to establish your identity as a male in Canada. I also believe that you have been mistreated by your family in Iran due to your gender identity and that you are fearful to return to Iran because you may be harmed or killed by your family or the authorities due to your gender identity. I therefore find that your subjective fear is established by your credible testimony and the corroborating documents and I believe what you have alleged on a balance of probabilities. 

[19]      I also find based on a review of the National Documentation Package for Iran that your fear is objectively well-founded. The documents indicate that the law criminalizes all sexual relations outside of traditional marriage and Iran is among the few countries where individuals can be put to death for consensual same-sex conduct. Security forces harass, arrest, and detain individuals they suspect of being LGBTQ+. In some cases, security forces have raided houses and monitored Internet sites for information on LGBTQ+ persons. It is reported that members of the LGBTQ+ community face harassment and discrimination, though the problem is underreported due to the criminalized and hidden nature of these groups in Iran. It is also reported that honour killings against sexual and gender minorities in Iran are often carried out by family or community members for bringing shame or dishonour on a family. I find that the objective evidence indicates that you have a well-founded fear of persecution in Iran. 

State Protection and Internal Flight Alternative

[20]      States are presumed to be capable of protecting their own citizens except in situations where the state is in a state of complete breakdown. Given that same-sex conduct is criminalized and punishable by death and that security forces actively police LGBTQ+ individuals, the state is an agent of persecution and therefore there is no state protection or internal flight alternative available to you in Iran. 

[21]      INTERPRETER: Sorry. I just need to get some water. Sorry. 

[22]      MEMBER: I find the country condition information to be clear and convincing evidence to rebut the presumption of state protection. 

CONCLUSION

[23]      Based on the totality of the evidence, I find you to be a Convention refugee and I accept your claim.

——— REASONS CONCLUDED ———