The Tokyo District Court on Wednesday rejected a lawsuit filed by a 40-year-old Iranian seeking recognition as a refugee on the grounds he would be punished due to his homosexuality under Iran’s Islamic penal law.

In the first judicial ruling in Japan over whether a person can seek asylum based on sexuality, the court turned down the man’s claim, ruling he can live safely in Iran as long as he does not overtly engage in sexual conduct.

The plaintiff, identified only by his nickname Shayda, applied for refugee status in June 2000. It was the first time homosexuality had been cited in a refugee application. The application was rejected two months later and the man was held at two detention facilities for foreigners for 19 months for overstaying his visa.

He was recognized as a legitimate refugee by the Office of the United Nations High Commissioner for Refugees in 2001.

The Tokyo court acknowledged that under Iran’s Islamic penal law, perpetrators of sodomy or other physical acts between people of the same sex can face punishment, including death. But it said they can live safely in Iran as long as they do not “overtly” engage in such activities.

Under the Islamic penal law, which took effect in 1991, adults who practice anal sex can, in the most extreme cases, be put to death, while two men who sleep naked under a cover can be punished with up to 99 lashes. If two men kiss “with lust,” they face up to 60 lashes. Women who repeatedly engage in homosexual relations can also face the death penalty.

The plaintiff’s side argued there have been many media reports of homosexuals being executed in Iran, often in “cruel” ways, including being stoned to death, even in recent years.

As Shayda has participated in a variety of gay movements since arriving in Japan in 1991, he may immediately face persecution if he returns to Iran, his lawyer said.

But while the court acknowledged that the reports from Iran were credible, it nonetheless said that a person can still find a way to avoid persecution while living as a homosexual.

After the ruling, his attorney said he would appeal, but Shayda indicated he was frustrated with the outcome of the 3 1/2-year trial. He said he was not shocked by the ruling because he no longer expects much from Japan’s refugee policy.

“I may have no choice but to seek another country where I can find asylum,” Shayda said.

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