England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Thursday, 26 September 2002

1. LORD JUSTICE DYSON: Mr Sarkisian is an Azerbaijani national. He entered the United Kingdom on 23 February 1999 and claimed asylum. By a letter dated 14 December 2000 the Secretary of State refused his claim. He appealed to the adjudicator, who by a decision of 11 December 2001 allowed the appeal. The Secretary of State then appealed to the Immigration Appeal Tribunal, who by a decision issued on 29 April 2002 allowed that appeal. Mr Sarkisian now seeks permission to appeal against the decision of the tribunal.
2. His case was that he feared persecution in Azerbaijan because he was of Armenian ethnicity, his father being Armenian and his mother being half-Armenian. He had been the victim, he said, of incidents in Azerbaijan in 1988 and 1989, as a result of which he moved to Moscow where he stayed for eight years. He left Moscow in 1997 and spent one year in Ukraine before coming to the United Kingdom.
3. The critical findings and reasoning in the adjudicator's determination are to be found in paragraphs 15-17 which so far as material read as follows:

"15. The respondent's refusal letter takes a very selective view of the only background evidence available, ie The US State Department Report. The level of discrimination against ethnic Armenians is not low level. It has been sufficient to drive almost all of them out of the country. I do not find any evidence that the country has begun to welcome their return. It appears to [me] that many ethnic Armenians may be able to establish a well-founded fear of persecution if returned to Azerbaijan, which is the issue before me.

16. I do not find the appellant a very impressive witness. His movements since 1988 have not primarily been motivated by flight from persecution. If that were the case, he would have moved to Armenia. I do not accept that he would be [at] any risk there because he is of one quarter Azerbaijani extraction given that his own perceived ethnicity and religion is Armenian. He could have moved there in 1988 or 1989 if he chose. His movements to Russia and Ukraine were for motives other than fear of persecution. His arrival in the United Kingdom had nothing to do with such a fear . . .

17. In spite of finding the appellant a witness of little credit, I note that the respondent has not doubted that he is an Azerbaijani of Armenian ethnicity. As I have found myself unable to agree with the respondent's view of the background evidence, it follows that I conclude that the appellant if returned to Azerbaijan would be at risk both of persecution for reasons of race and of treatment contrary to Article 3 of the Human Rights Convention."

4. I turn now to the decision of the tribunal. At paragraph 7 they made their own assessment of the background material. In doing so they relied heavily on the roving attaché mission report made by the Danish immigration service in 2000. The Tribunal said this (page 28):

"It reflects the thrust of the other background material and offers useful detailed insights into sometimes differing views. On balance it suggests that the main exodus of Armenian men in 1988-92 was to avoid conscription or involvement in the war. However feelings on both sides must have run high and that would have been another factor in the exodus. There were serious atrocities committed in that war and memories of them are still raw as can be seen from a recent report from parliament. People involved in the fighting have had problems but there is evidence of the release of POWs. However nowadays in general Armenians are either totally integrated or totally isolated and there is no systematic persecution of them. The passions of the past between the communities have given place to a lingering sense of unease. The antagonism of the past has given way to reasonable neighbourly relations. Armenians mainly live in the regions of Semkir and Goramboy and there are no problems for them there. There may in the country at large be some discrimination for a variety of reasons but the evidence does not establish that it is generally evident on a day-to-day basis or sufficient to cross the threshold of severity required for persecution."

5. They then at paragraph 9 identified errors in the reasoning of the adjudicator in the following terms:

"It appears to us, despite Mr Symonds' assertion, that the Adjudicator has not asked the right questions. He placed great weight on the mass exodus of Armenians in 1988-92 and said they were driven out but did not make any attempt to assess whether their leaving was due to a fear of persecution or to a desire to avoid conscription and involvement in the war. He did not relate this to his finding that the Respondent left Armenia for a reason other than persecution. He said that discrimination was not low level but did not say what elevated such discrimination into persecution. He erred significantly in applying the test of whether the Azerbaijan authorities would welcome the Respondent's return. The issue on which he ought to have focused is whether the Respondent would now have a well-founded fear of persecution for a Convention reason. He was contradictory in finding that many ethnic Armenians may be able to establish a well founded fear of persecution but not then explaining who would not and why, and giving reasons for his finding that the Respondent fell into the group which he did."

6. It followed in the tribunal's view that the adjudicator's conclusion that the applicant had a well-founded fear of persecution was fatally undermined. At paragraph 10 they went on to make their own findings on the basis of the background material before them. They said:

"Our findings as to the background context are as stated above and lead us to the conclusion that an ethnic Armenian cannot now establish even to the low standard of proof applicable, a well-founded fear of persecution on return to Azerbaijan on the grounds of ethnicity per se. Of course each case must turn on its own facts and some may have merit. In this appeal however, the Adjudicator has rightly found on the evidence and his assessment of credibility that the Respondent has not suffered past persecution. There are no specific matters which set the Respondent apart from other ethnic Armenians. There is no specific reason why he personally should face any exceptional risks. There is no suggestion that he was involved in any war crimes. He may well face difficulties on return in getting established as the country is facing considerable economic problems, though it is has oil reserves. However, these difficulties do not even in aggregate, cross the severity threshold to constitute persecution or a breach of Article 3."

7. It is relevant to the application before the court today to point out that before the tribunal Mr Sarkisian relied on certain parts of the United States State Department report of March 2002 as evidence that Armenians were persecuted and/or subjected to degrading treatment in Azerbaijan on grounds of their ethnicity. The passages on which particular reliance was placed were these:

"A cease-fire in effect since 1994 continued to contain the conflict with Armenia over Nagorno-Karabakh; however, minor outbreaks of fighting occurred and resulted in the deaths of civilians as well as combatants. The taking of prisoners, including civilians still occurred. Armenian forces continued to occupy an estimated 16 per cent of Azerbaijan's territory (including Nagorno-Karabakh); this fact continued to dominate Azerbaijan's national politics, weaken state institutions, and undermine democratic and economic development.

The Constitution provides for equal rights without respect to gender, race, nationality or national origin, religion, language, social status, or membership in political parties, trade unions or other public organisations; however, in the wake of the Nagorno-Karabakh conflict, there is widespread anti-Armenian sentiment in society. Some members of other ethnic groups also complained credibly about discrimination. Preventing this discrimination is not a government priority.

The approximately 10,000-30,000 citizens of Armenian descent complained of discrimination in employment, schooling, housing, and other areas. Most shield their identity or try to leave Azerbaijan. Some have changed their nationality, as reported in their passports. Ethnic Armenians have complained of discrimination in employment and harassment at schools and workplaces and of the refusal of local government authorities to pay pensions. Armenian widows have had permits to live in Baku revoked. Some persons of mixed Armenian-Azerbaijani descent continued to occupy government positions. Government officials whose parents reportedly are of or had mixed-Armenian and Azerbaijani marriages have been attacked publicly by colleagues in the press".

8. Grounds of appeal were drafted on behalf of Mr Sarkisian by counsel, although counsel has not appeared to represent him this morning. The essential grounds of appeal are first that the tribunal failed to take into account the United States State Department report, or failed to explain why they relied on the mission report in preference to the United States State Department report; and secondly, that the tribunal failed to explain why the discrimination described in the United States State Department report was not degrading treatment within the meaning of Article 3 of the European Convention on Human Rights and persecution within the meaning of the Geneva Refugee Convention.
9. There is no reason to doubt that the tribunal did take into account all the background material that was placed before them. That is what they said they did at paragraph 7. It is clear that they found the mission report to be the most informative document. Indeed, it is considerably more detailed than the United States State Department report on the issue of the treatment of Armenians in Azerbaijan. There are some differences between the two reports but these should not be overstated. I do not think it is sensible to read the United States State Department report as saying that all ethnic Armenians have complained of discrimination, nor does that report characterise the discrimination as severe. It is not submitted in the grounds of appeal or indeed the skeleton argument prepared by counsel on behalf of Mr Sarkisian that the summary of the mission report contained at paragraph 7 of the tribunal's determination is inaccurate or unfair. The critical finding by the tribunal is that

"There may in the country at large be some discrimination for a variety of reasons but the evidence does not establish that it is generally evident on a day-to-day basis or sufficient to cross the threshold of severity required for persecution."

10. In my judgment that finding is consistent with the less detailed United States State Department report and one which the tribunal was entitled to make. What amounts to degrading treatment within the meaning of Article 3 and discrimination sufficiently severe to amount to persecution is a question of degree. It is a question of fact on which it is possible for different people reasonably to hold different views. This court will not interfere with the decision of an Immigration Appeal Tribunal on such a question unless the decision is erroneous in law. A decision will be held to be erroneous in law only if it is unreasonable in the Wednesbury sense. In my judgment the decision in the present case comes nowhere near satisfying that stringent test.
11. I should, however, go on to deal with the fresh material that has been placed before the court this morning by Mr Sarkisian. This consists of a number of documents of different kinds which admittedly contain references in particular to problems faced by the Christian church in Azerbaijan. For example, there is a reference to a decision made on 3 April 2002 by the District Court in Baku to liquidate the Love Church, an Azeri-language Baptist church based in the Azerbaijani capital. It would seem from the documents placed before the court that the reason, or at any rate one of the reasons, for that decision was that accusations had been made against the church on the basis that the pastor had made anti-Islamic remarks. It does not seem to me that this fresh material supports the proposition that there that has been a wholesale closure of all churches through the country, as Mr Sarkisian appeared to be suggesting. Such a suggestion would indeed be quite inconsistent with the statement that appears in the United States State Department report at page 81 of the bundle that we have which says:

"There are thousands of mosques, churches, temples, religious communities, and other smaller clerical organisations throughout the country. By year's end, several religious groups continued to report that they had not been registered; however, this did not prevent them from functioning."

12. I have enormous sympathy for Mr Sarkisian. He makes the point that there are now only some 30-40,000 Armenians in Azerbaijan and the overwhelming majority of these are women and elderly. That is a point which was well understood by the tribunal and was made in the material that was before it. He further makes the point that life is extremely difficult for Armenians who are Christian in Azerbaijan, which is a strongly Muslim country. There is, as is evident on the material before us, as it was before the tribunal, ample evidence to show that there is hostility against Armenian Christians in Azerbaijan. But what has to be demonstrated is a well-founded fear of persecution within the meaning of the Convention or a danger of degrading treatment within the meaning of Article 3 of the European Convention on Human Rights.
13. Having given the fresh material which has been placed before us, as well as the original material, very careful consideration, I am satisfied that it does not form the basis of an arguable case that the tribunal's decision was wrong in point of law, nor does the fresh material significantly change the evidential picture that was before the tribunal and fully considered by it.
14. For all these reasons, I would refuse this application.
15. LORD JUSTICE RIX: I agree.
ORDER: Application refused