United Kingdom Asylum and Immigration Tribunal

MT v Secretary of State for the Home Department [2002] UKIAT 03404

HX-31127-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 12/06/2002

Date Determination notified: 02 August 2002

Before
Mr H J E Latter (Chair) Mr A G Jeevanjee

 

MT	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant:Ms Y Adedeji of Counsel instructed by Richards Heynes & Coopers, Solicitors.

For the respondent:Mr M Pichamuthu, Home Office Presenting Officer

DETERMINATION AND REASONS
1. This is an appeal by Melikov Teymor, a citizen of Azerbaijan, against the determination of an Adjudicator (Mr R A Prickett) who dismissed his appeal against the decision made on 22 May 2001 giving directions for his removal following the refusal of his claim for asylum.
2. The appellant was born in Sumgait in Azerbaijan in June 1974. His father was an Azeri and his mother an Armenian. His father died in 1980. The appellant continued to live with his mother in Sumgait until 1998 when he left to go to Baku where he lived until 1990. Meanwhile, his mother had gone to live with her sister in Moscow because of the situation in Azerbaijan and the hostility towards Armenians. In 1990 the appellant also left to go to Russia to join his uncle in Severodvinsk.
3. The appellant worked for his uncle who was in partnership with another businessman. There were various problems which resulted in the appellant's uncle being imprisoned for a short time. Subsequently in January 2001 after he was released, his uncle left home for work but was never seen again. The appellant decided at this stage to leave Russia. He paid an agent DM 5,800. He left Russia on about 25 February 2001 and eventually arrived in the United Kingdom on 6 April 2001.
4. When interviewed, he explained what had happened to him in Azerbaijan in his long answer to question 24 in the interview record. He was also questioned at some length about the circumstances relating to his uncle's business and how he came to leave Russia. He was asked at question 43 why he did not move back to Azerbaijan. He said that he had left Azerbaijan because of Karabakh. This is a reference to the conflict between Azerbaijan and Armenia about Nagorno-Karabakh. He added that the people he used to know in Azerbaijan were not there anymore.
5. The Secretary of State refused this application for the reasons which he has set out in his letter dated 20 May 2001. This letter dealt at length with the appellant's fears of returning to Russia. The Secretary of State considered that there was a part of Russia where the appellant did not have a well founded fear of persecution and where it was reasonable to expect him to go. He also noted that the appellant had spent the early part of his life in Azerbaijan where, apart from verbal abuse from various individuals because of his mixed ethnicity, he had lived in relative safety. He considered it reasonable to expect the appellant to return there to seek and establish a life in that country.
6. The appellant appealed against this decision and his appeal was heard by the Adjudicator on 9 October 2001. The issue before the Adjudicator was whether the removal of the appellant to Azerbaijan would be in contravention of the United Kingdom's obligations under the Refugee Convention. It is not in issue between the appellant and the respondent that the appellant is a citizen or national of Azerbaijan and it is in respect of that country that his claim for asylum must be assessed.
7. The Adjudicator accepted that the appellant was a credible witness, but on the basis of the objective evidence before him, he was not satisfied that the appellant had discharged the onus of proof to show that he would have a well founded fear of persecution for a Convention reason in Azerbaijan nor that there would be a breach of Article 3 of the Human Rights Convention were he to be returned there.
8. At the hearing before the Tribunal, Mr Robert Chenciner gave oral evidence. He has provided a report dated 27 November 2001 and a supplementary report dated 29 April 2002. He sets out the brief history of Azerbaijan since 1990. The hostility between Azerbaijan and Armenia has led to the expulsion of Azeris from Armenia and Armenians from Azerbaijan. Some 800,000 Azeri refugees have moved from Armenia and Nagorno-Karabakh to Azerbaijan and the Armenian population of some 400,000-500,000 in Azerbaijan have been expelled.
9. There is a culture of discrimination and hostility towards ethnic Armenians based on this climate of bitterness. Official discrimination takes the form of the denial of public welfare in a society which until 1991 had no private welfare. It is Mr Chenciner's view that the appellant's fears of racist and physical persecution are well founded and he would have no local protection from the Baku police. It is possible to buy false documents in Baku but the appellant's facial features mean that it would be impossible for him to avoid being recognised as half Armenian. It is his view that the appellant would not be provided in any event with Azerbaijani papers. He is not aware of a single instance of an ethnic Armenian being granted such papers. He made discreet inquiries through a firm of Scottish lawyers which confirmed his suspicions that the Azerbaijani authorities would require the appellant to give his mother's maiden name when applying for an external passport, a propiska or a residence permit. This would alert the authorities to the appellant's ethnic background. It was his view that if the appellant is returned to Baku even with papers, he is likely to be investigated and ill-treated. There was a risk of continuous brushes with authority leading to beatings and detentions although Mr Chenciner did not think that the authorities would bother to kill the appellant. The real risk was being detained to trade him for one of the Azeris detained by the Armenians, or the Armenian sponsored authorities in Nagorno-Karabakh.
10. Mr Pichamuthu referred the Tribunal to the determination in Sarkisian [2002] UKIAT 01257. In that case the Tribunal had held that ethnic Armenians in Azerbaijan did not have a well founded fear of persecution for that reason alone. The Tribunal had accepted that the passions of the past between the communities had given away to a lingering sense of unease and to reasonable neighbourly relations. There may be in the country at large some discrimination for a variety of reasons, but the evidence did not establish that it was generally evident on a day to day basis or nor was it sufficient to cross the threshold of severity required for persecution. On the facts of that appeal the Tribunal were not satisfied that the appellant would be at risk of persecution nor that there were any matters which set him apart from other ethnic Armenians and there was no specific reason why he personally should face any such risks.
11. Mr Pichamuthu submitted that up to 40,000 Armenians remain in Azerbaijan. Even if, as the evidence tended to show, they are mostly women, it followed that Armenians per se were not at risk of persecution. It would be wrong to make any assumptions from the facial features of the appellant. In any event he had an Azeri name and from his father an Azeri background.
12. Ms Adedeji submitted that Sarkisian was properly distinguishable. In any event the Tribunal in that case did not have the benefit of expert evidence. She relied on Mr Chenciner's report. Even if there were some 40,000 Armenians left in Azerbaijan, they were either women or children. The appellant was a young male of military service age who had not lived there for ten years.
13. The Tribunal note that the Adjudicator found the appellant to be a credible witness. The appellant's fears of returning to Russia are of no relevance in this appeal. It is not argued that the appellant is a citizen of Russia, nor that he should be returned there. The issue is whether the appellant has a well founded fear of persecution in Azerbaijan. The fact that he has not lived there for twelve years and may face economic difficulties on return, which doubtless he would share with any other returnee in similar circumstances, does not without more give the appellant a claim under either the Refugee or Human Rights Conventions.
14. The Tribunal accept the evidence of Mr Chenciner. It is clear from his report and from his oral evidence that he has considerable expertise in relation to the Caucasian states which attained their independence following the break-up of the Soviet Union. It is clear not only from his evidence, but also from other background evidence and in particular the US State Department Report that to all intents and purposes both Azerbaijan and Armenia have "cleansed" their countries of the other countries nationals. Some Armenians do remain in Azerbaijan. The reports suggest that there are about 30,000-40,000 there. There is evidence that of these 98% are women. There are certainly very, very few males of the age of the appellant. Mr Chenciner explained that in the Caucasian states there was a general respect for older people and the situation would be a little bit easier for elderly people of Armenian ethnic origin who would be left alone provided they did not draw themselves to the attention of the authorities. In his view, the position would be very different for the appellant.
15. The Tribunal are satisfied on the basis of the evidence we have heard in this appeal that there is a real risk that the appellant would be the victim of hostility, violence and discrimination to such an extent that it could properly be described as persecution. Mr Chenciner did not believe that the appellant would get out of Baku airport without being detained and beaten. Even if he did, he would be continuously at risk of detention and ill treatment. The hostility would not just come from the authorities but from the Azeri population. In our view, it is entirely fanciful to think that the appellant would be able to look to the Azerbaijani authorities for protection. The reason the appellant would receive this treatment was because he would be regarded as Armenian. Mr Chenciner says that he looks Armenian and will stand out from the Azeris. The Tribunal agree with Mr Pichamuthu that the Tribunal should be cautious about drawing conclusions from facial characteristics but on the facts of this appeal and in the light of the evidence we have heard which we find compelling in this respect, we do not think that there is any likelihood that the appellant will be able to blend in with the local population and avoid targeting or hostility from both the authorities and the Azeri population in general.
16. The Tribunal take the view that the appellant is not at risk of persecution from the fact alone of being of Armenian ethnic origin. It is the fact that he is a male, aged now 26 who has been out of Azerbaijan for some twelve years which would put him at risk on return. To this extent we agree with the comment of the Tribunal in Sarkisian but we find that there are specific features about the appellant which put him at risk. For the reasons which the Tribunal have given, we take a more pessimistic view of the relationship between the Armenian community and the Azerbaijan authorities and Azeri people, but we have had the benefit of hearing expert evidence. However, we are not concerned with the situation in general save in so far as it impacts upon the risk to the appellant.
17. For the reasons the Tribunal have given, we are satisfied that there is a real risk that the appellant would be at risk both of persecution under the Refugee Convention and of inhuman or degrading treatment of such severity to satisfy the high threshold in Article 3 of the Human Rights Convention.
18. Accordingly, this appeal is allowed.