H-KM-V2

Heard at Field House			
On 4 October 2004			
                   MM (FMA- Low level – Risk – Evidence) Iran [2004] UKIAT 00313
IMMIGRATION APPEAL TRIBUNAL

                                                                              Date Determination notified:

                                                                                     16 November 2003	

	Before:		

Mr A R Mackey – Vice President
Miss B Mensah – Vice President 
Mr A Smith
	
Between	

	
		APPELLANT	
			
	and		

SECRETARY OF STATE FOR THE HOME DEPARTMENT
	
		RESPONDENT 	

Representation:

For the Appellant: 		Mr N Klear of Simmons Solicitors, 						Borehamwood, Hertfordshire
For the Respondent:	Mr G Elks, Home Office Presenting Officer 

DETERMINATION AND REASONS

1.	The Appellant, a citizen of Iran, appeals with permission against the Determination of an Adjudicator, Mrs M M Shanahan, promulgated 16 February 2004, wherein she dismissed an appeal against the decision of the Respondent, who had refused leave to enter and asylum and human rights claims.

2.	The Vice President who granted permission noted the grounds as:

“(a)	the Adjudicator had erred in his assessment of the evidence regarding the lack of adverse interest in the Claimant shown by the Iranian authorities following his departure from Iran;

 (b)	she erred in her assessment of the objective evidence regarding the adverse interest shown by the Iranian authorities in persons associated with the Free Movement of Azerbaijan;

 (c)	she erred in her assessment of the Article 3 claim”

3.	The Vice President considered, in light of the Adjudicator’s acceptance of the Appellant's evidence, as recorded at paragraph 31 of her Determination, those grounds raised arguable points of law which merited further consideration.

4.	We noted that this appeal had been heard by the Adjudicator in February 2004 and therefore was based on the 2002 Immigration and Asylum Act.  

5.	At the outset we were provided with a bundle from the Appellant consisting of some 147 pages.  This included additional material, beyond that which was submitted to the Adjudicator.  Mr Klear also submitted to us copy of the Determination in Kiali [2002] UKIAT 01328 (persecution – refugees – political writer – Iran – CG).  Mr Elks submitted to us a Determination he considered relevant WN [2004] UKIAT 00213 (Surendran, credibility, new evidence – DRC).  

The Adjudicator’s Determination 

6.	Before the Adjudicator Mr Klear had represented the Appellant but there was no appearance from the Home Office.  The Adjudicator found that the Appellant's claim was as now follows.   He was an Iranian of Azeri ethnicity.  A friend of his, J S, was involved in the “Freedom Movement of Azerbaijan” (FMA).  That friend had asked the Appellant to look after two small boxes of leaflets about the movement, which the Appellant agreed to do.  The day after he received the boxes, which appeared to be 1 March 2001, the police came to the Appellant's house.  The Appellant saw them from upstairs and, fearing arrest, escaped through the back of his house.  He fled to another town and stayed with a friend.  Approximately two days later he made his way to the Turkish border and ultimately, after five months in Turkey, travelled to this country.  He states that he had a brother who had been involved in the Mojaheddin and in 1991, as a result of this, the Appellant had been detained, when the police came searching for the brother.  His brother was ultimately imprisoned for one year but, following his release, travelled to Australia, where he obtained refugee status.

7.	The Appellant feared that if he were returned he would be arrested, detained and tortured, because of his possession of the leaflets and a political opinion that would be imputed to him.  

8.	Before the Adjudicator was objective material from the United States Department of State Report, the October 2003 CIPU Report and other material in the Appellant's bundle.  The Adjudicator noted that Azeris are the largest minority group in Iran comprising between 25 and 33% of the population.  They are Sh’ia Muslims “and in most respects are similar to the rest of the population”.  The one factor which differentiates them is their language, which is Azeri Turkish.  In the main they live in the north-western provinces of Iran and areas known as East and West Azerbaijan.  Many also live in Tehran and in scattered communities in between the western provinces and Tehran.  She summarised that Azeris were not targeted because of their ethnicity but would be if they were involved in anti-government activities.  She noted also from the reports that Azeris had no legal or illegal parties or organisations and, since the 1980s, they had not been subjected to much repression or discrimination.  However some complaints about discrimination in relation to Persian culture, and the removal of the Azeri language from official use, did occur.  

9.	She noted some of the material did indicate there was a movement by Azeris to re-establish their culture and that this movement appeared to be led by Dr Mahmoudali Chehregani.  It was also noted that Dr Chehregani had been arrested and tortured and released several times over the past five years.  The objective evidence also disclosed that, according to Azeri groups, there were a number of Azeri political prisoners jailed for advocating their cultural and language rights and several had been charged with “revolting against the Islamic state.”

10.	The Adjudicator found, after hearing evidence and assessing the objective information, that the Appellant had not embellished his case and, in fact, the only possible discrepancy involved the Appellant actually reducing the seriousness of his account to the extent that he stated he was simply looking after the two boxes of leaflets for his friend.

11.	At paragraph 31 she went on to find:

“Having reviewed the evidence and the Appellant's explanations I find that he has provided a credible account in that he agreed to look after two boxes of leaflets but the police came to his home and he escaped.  It is likely that his wife was interrogated about him but was then released.  However there is no evidence that any further interest has been shown by the authorities.  There are no warrants or summonses outstanding for him and there is no evidence of any further visits to his wife or family.  His involvement was at the very lowest level in a movement which even today it has not caused any persecution of Azeris, other than Mohammed Chehrangi (sic), and an Azeri group report of an unspecified number of political prisoners.  This Appellant is not in the same category; he is not a person of any prominence, he has not been involved in any political activities or groups and his arrest in 1991 was because he interfered with his brother’s arrest and not because of any political issues.”

12.	She went on to assess the risks in the following paragraph and concluded that the Appellant would return as a failed asylum seeker and, at most, would face prosecution for illegal exit. However, following the Determination in Mohommadzadeh [2002] UKIAT 05660, that would not amount to persecution.  She therefore dismissed the appeal both on asylum and human rights grounds.

The Appellant's Case

13.	Mr Klear submitted that as credibility had been accepted the sole issues before the Tribunal were the assessment of the reality of risk to this Appellant on return and whether there would be sufficiency of protection available to him.  He adopted the grounds of appeal upon which permission was granted.  He submitted that it was necessary for us to consider the objective evidence at the outset and then conclude whether the Determination of the Adjudicator was perverse on the basis of that objective evidence.

Appellant's Objective Evidence 

14.	We were firstly referred to a Radio Free Europe/Radio Liberty “Newsline” article of 29 April 2003 “Azerbaijan Looks South”.  This article refers to the ethnic identity of Azeris being vastly underestimated and that it is a powerful force quite capable of superseding the integration and assimilation of Azeris within the Iranian state.  “This argument also holds that the internal-reform effort under way in Iran is fuelling a cultural and ethnic awakening among ethnic Azeris.”  Problems relating to the Azeri language and its acceptance in Iran are then set out.

15.	We were then referred to objective information contained in an earlier Determination of the Tribunal Rasti [2002] UKIAT 02598, at paragraph 5 where reference is made to a United States Department of State Report of February 2000 and a comment is made:

“The government is paranoid about oppositional activities abroad so much so that several Iranian dissidents who have fled abroad been tracked down and killed by Iranian Government agents.”

16.	We were next taken to the CIPU Report of October 2003, at paragraph 6.112, under the section “Ethnic Minority Groups”.  This states the largest ethnic minority group in Iran are the Azeris.  At paragraphs 6.126-6.128 there is a sub-section on Azeris.  We have noted this section.  It states:

“6.126.  Iranian Azeris are not targeted as a group and not persecuted unless they are involved in some general opposition-related activities.  The Azerbaijanis, also known as the Azeris, are the largest minority in Iran composing between one quarter and one third of Iran’s population estimates vary because the Iranian census does not count Azeris specifically.  They are Shi’a Muslims and in most respects similar to the rest of the Iranian population. Many prominent Iranian Shi’i clerics have been and are Azeris.  The one factor that differentiates them from the rest of the Iranian population is that their native language is Azeri Turkish.  They live in the north-western provinces of East and West Azerbaijan as well as in Tehran and scattered communities in between these provinces and Tehran.

6.127.  For a brief period after the revolution, the Azeri language press flourished.  Also, with Soviet encouragement and support, Azeri nationalism and the desire for autonomy began to resurge.  However, the Iranian Government considered this nationalism to be the result of Soviet interference in Iranian affairs and began to repress this resurgent nationalism in the early 1980s.  After 1981, there were few reports of disturbances and by 1984, only one of the many Azeri language publications remained.  The Azeris, as of the late 1982, have participated in the Iran government at a national level as much as any other group, including ethnic Iranians, up to the highest levels of government.

6.128.  The Azeris have no illegal or legal political parties or organizations.  As has been the case since the mid-1980s, the Azeris have not had to deal with much repression or discrimination.  The Iranian government prefers to emphasize the cultural similarities between the Persian speaking majority of Iran and the Azeris.  The only repression or discrimination that occurred since the revolution has been immediately after the revolution in order to repress the stirring Azeri nationalism and demands for autonomy.  Nevertheless, there have been complaints about discrimination against Azeris by the Iranian regime, particularly against Turkic speaking Azeris.  One commentator writes of the dominance of a policy of ‘Persian chauvinism’ leading to the removal of the Azeri language from official use in all areas such as schools, courts, government structures and the army as well as the prohibition of some forms of Azeri cultural expression.”

17.	Mr Klear submitted that these three paragraphs indicated that persons such as the Appellant would therefore be of interest to the Iranian authorities on return as a person promoting the advancement of Azeri cultural expression.  

18.	We were next referred to the United States Department of State Report on Iran (2002 report released 31/03/2003).  At section 5 of that report (pages 83 and 84 of the bundle) it stated:

“In general the government did not discriminate on the basis of race, disability, language or social status; however, it discriminated on the basis of religion and sex.  In some instances, it discriminated on the basis of language, such as with the Kurds, Azeris and Ahwazi Arabs.”

19.	There was also a reference under the section “National/Racial/Ethnic Minorities” to the Azeris where it is stated:

“Azeris are well integrated into Government and society, but complained of ethnic and linguistic discrimination.  The Government traditionally viewed Azeri nationalism as threatening, particularly since the dissolution of the Soviet Union and the creation of an independent Azerbaijan.  Mohammed Chehregani, an advocate for the cultural rights of Azeris, has been arrested, imprisoned, tortured and released several times over the past five years.  According to Azeri groups, Chehregani’s December 1999 arrest was made to prevent his registration as a candidate for the February 2000 parliamentary elections.  They also claimed that there were a number of Azeri political prisoners jailed for advocating cultural and language rights for Iranian Azerbaijanis.  The government has charged several of them with ‘revolting against the Islamic state’.”

20.	Mr Klear took us to a report prepared by Dr Chehragani and issued by the Centre for Strategic and International Studies (USA) titled, “Azerbaijani Turks of Iran: Will They Lead a Revolution Again?” by Dr Chehragani 8 August 2002.  At the outset of that report, in a commentary, it states that Dr Chehragani is the leader of the National Movement of South Azerbaijan (GAMOH).  He ran in the 1995 parliamentary elections in Iran and received nearly 600,000 votes in Tebriz.  Since then he had been jailed three times and tortured.  It states that he left Iran eight months earlier than the article to inform the international community of developments inside Iran.  The article records an interview with him.  From this interview Mr Klear asked us to note several points.  These included a statement that Azerbaijani Turks were the majority ethnic group in Iran comprising approximately 50 million people of which 20 million live in south Azerbaijan, 10 million in Tehran (making up 70% of the population) and 4 million elsewhere.  It states that Dr Chehragani was released from imprisonment after Amnesty International condemnation and a letter from the UN Secretary General Kofi Annan finally secured his being let out of jail.  He stated that GAMOH had become very strong over the past seven years and that once a year they had a gathering at Babak Castle (this being a liberty symbol for south Azerbaijan) about 1.2 million people showed up at that festival.  It was also stated that they had established over a thousand committees and towns and villages and cities and those committees had raised the cultural needs of the Azerbaijani Turk population.  The report also interestingly notes that the supreme leader Khameini is himself an Azeri.

21.	Other reports from Radio Free Europe/Radio Liberty were produced to us including “Azeri – Iranian celebration brings risk” (12 July 2004).  This refers to thousands of people gathering at the Babak Castle in late June early July for their annual commemoration and that security forces reported arrests of 80 ethnic Azeris for “spreading secessionist propaganda during the celebration.  Of the more than 100 who were arrested some were released but many more did not return home from the camp out ceremonies.  It also states that there were some 40,000-60,000 police, plain clothed and security agents, in the area at the time of the festival.

22.	 A further article from Radio Free Europe/Radio Liberty “Azeri irredentists claim massive repression in Iran” (28 July 2003).  This states that the “National Liberation Movement of Southern Azerbaijan” claims that its activists are the subject of “massive arrest and repression”.  This report is from the Baku office of the Congress of Azerbaijanis.  

23.	Mr Klear stated this comprised the objective evidence that he was able to find in relation to risks to Azeris.  He submitted that given the positive credibility findings of the Adjudicator, when coupled with the objective evidence which showed targeted political activities exist against Azeris, it was evident that the Adjudicator had erred in her conclusions.  In this situation, he submitted, that  the Iranian authorities would have a file on the appellant, which would be awaiting him on his return.  Therefore he was likely to be questioned on return and subjected to detention and serious maltreatment.

24.	He agreed that the Adjudicator had correctly summarised the Appellant's position as only looking after two boxes of pamphlets and that there was no indication of any warrants, summonses or other outstanding demands, upon the Appellant, by the Iranian authorities.  He submitted that, as the question of whether there were outstanding summonses or warrants had not been put to the Appellant, it was incorrect of the Adjudicator to bring this into her considerations.  The only evidence the Appellant had produced was in relation to his wife being detained and questioned, and that the boxes of pamphlets had been taken away by the Iranian authorities.  He agreed that the other evidence from his wife indicated that she had moved away from the family home and now lived with her father.  However he produced no evidence that she or other family members had been interviewed or detained subsequent to his wife’s two day detention.

25.	We asked whether he was submitting that the Appellant would be seen as an activist.  He submitted that this would be the case, as the Appellant had been found to have the leaflets in support of the Azeri cause in his home, and that given the resurgence in 2004 of interest in suppressing Azeri interests in Iran, there was therefore a real risk to this Appellant on return.  

The Respondent's Submissions

26.	Mr Elks submitted to us that we should note that this was an appeal that should be considered by us under the 2002 Asylum and Immigration Act and that we should only interfere with the decision if there was a clear error of law made by the Adjudicator.   He  referred us to the recent Determination of the Court of Appeal in CA [2004] EWCA Civ 1165, paragraphs 24-28.

27.	He submitted that there was no perversity shown in the Determination of the Adjudicator and she had reached a decision that was open to her, after careful regard to the authorities and the subjective and objective material before her.  He submitted that the findings of paragraph 31 of the Determination were significant and that these showed that the Adjudicator had found lack of further interest in the Appellant, with the only interest being a two day detention of his wife.  There had been no follow-up with any other family members since that time and, in his submission, it was reasonable to conclude that, if there had been further interest even though his wife had moved to stay with her father, the authorities could readily have pursued her or other members of the family including the Appellant's brother or father.  

28.	In particular he claimed that the Appellant had not provided evidence of any summonses being delivered to his family, as might be expected and noted from the CIPU Report (paragraph 5.35).  

29.	In this situation, he submitted that, there was a lack of continuing interest in this Appellant and therefore there would not be a real risk on his return.  We noted that while the leaflets had been taken from the Appellant's home the Appellant's wife had been released after a period of two days and there was no evidence to state that the authorities believed the leaflets were actually incriminating to the Appellant.  Beyond this, even if it were assumed they did implicate the Appellant, no further interest had been taken after the release of his wife.

30.	He submitted that the Adjudicator had been correct in finding that the Appellant was not an activist and his involvement was only at the very lowest level.  There was thus no apparent error of law in the Determination.

31.	If, it were assumed that there was an error of law, which he did not concede, then, even taking into account the new evidence, there was insufficient material for us to conclude this Appellant would be at a real risk on return.  He referred us to the objective material set out above, in particular the material from Radio Free Europe.  He questioned how reliable this material was, as its sources were not quoted.  He agreed that there may be an ethnic awakening of Azeris but the objective evidence did not indicate that actions taken against this Appellant rose to the level of persecution, the only exceptions being in very high profile situations, such as Dr Chehragani.  

32.	Beyond this the objective evidence showed that there was no generalised discrimination, except towards the Azeri language.  Other than this, integration of Azeris, as a major ethnic group, was clearly shown by the objective evidence.  Indeed many Azeris were at the highest levels of government (CIPU Report 6.143).

33.	In reply Mr Klear submitted that we must note the low standard of proof required and that credibility had been accepted in this case.  He submitted that, because summonses had not been provided or referred to by the Appellant, did not mean that they were not outstanding and awaiting the Appellant on return.  In particular he noted that, this issue had not been put to the Appellant for comment.  He submitted therefore this evidence could not be relied on in dismissing the Appellant's case.  

34.	We reserved our Determination.

The Issues

35.	We found the first issue before us to be whether the Adjudicator had made an error or law in her assessment? To do this we needed to establish whether there was sufficient error or perversity in her Determination to the extent that it was unsustainable.

36.	If an error of law was found, on the basis of the additional evidence provided, was this Appellant at a real risk of persecution or serious maltreatment that could invoke a breach of Article 3 of the ECHR on return to Iran?

Decision

37.	At the outset we consider that the conclusions of the Adjudicator that this Appellant was a person of very low profile and that his involvement with the FMA has been at a very low level are valid on the evidence.  The conclusions of the Adjudicator therefore, that there was no real risk to him, we consider are sustainable and no perversity is apparent from the submissions and evidence now put to us.  

38.	We note that the Adjudicator did rely on the Appellant failing to produced evidence of any further follow-up after his wife’s detention, including the fact that no evidence of summonses or outstanding warrants have been submitted by the Appellant.  In this regard we note that it is for the Appellant to make his own case.  He has not provided any evidence in this regard.  It would be pure speculation to suggest that summonses may be waiting for him on return.  In this situation, even though this issue may not have been put to him, we do consider that it is a relevant matter that the Adjudicator was entitled to take into account considering that if there were such summonses then it was logical and highly likely that the Appellant would have made reference to them.

39.	We are therefore satisfied that there is no error of law in the Determination and for this reason the appeal must be dismissed.  Beyond that, if we are wrong in that conclusion, from an assessment of the objective information, set out above, we consider that there is less than a real risk of the Appellant being persecuted or that there would be a breach of Article 3 of the ECHR on his return.  Any risk to him is of a remote or highly speculative nature.  This Appellant is clearly not an Azeri activist, as is mentioned in the objective material (in particular the Radio Free Europe/Radio Liberty articles).  He therefore has a totally different profile to Dr Chehragani who has been making substantive assertions of Azeri separatism, on a sustained basis, over a lengthy period of time.  This Appellant's activities have been of a very minor nature only and this, coupled with the lack of further follow-up after the short detention of his wife, confirms our conclusions that he is not at a real risk.

40.	This appeal is therefore dismissed.

A R MACKEY
VICE PRESIDENT