2116294 (Refugee)
[2022] AATA 5203
•24 October 2022
2116294 (Refugee) [2022] AATA 5203 (24 October 2022)
DECISION RECORD
DIVISION: Migration & Refugee Division
REPRESENTATIVE: Elizabeth Maree Thompson (MARN: 1171762)
CASE NUMBER: 2116294
COUNTRY OF REFERENCE: Azerbaijan
MEMBER: James Lambie
DATE: 24 October 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 25 October 2022 at 10:58am
CATCHWORDS
REFUGEE – protection visa – Azerbaijan – Religion – conversion – imputed political opinion – critical of policy and opposed the human rights violations – particular social group – identifies as bisexual – high levels of unemployment – forced marriage –- conscientious objector – fear of persecution – no effective state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASESAksahin v MIMA [2000] FCA 1570MIEA v Guo (1997) 191 CLR 559 Mijoljevic v MIMA [1999] FCA 834Murillo-Nunez v MIEA (1995) 63 FCR 150Nagalingam v MILGEA (1992) 38 FCR 191Prasad v MIEA (1985) 6 FCR 155Timic v MIMA [1998] FCA 1750Trpeski v MIMA [2000] FCA 841
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate (the delegate) of the Minister for Department of Home Affairs (the Department) on 12 October 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Azerbaijan, applied for the visa on 21 July 2021. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant appeared before the Tribunal on 22 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms[A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. The representative attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not
to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background:
The applicant is a [age]-year-old national of Azerbaijan.
The applicant first arrived in Australia [in]February 2020 pursuant to a Class VF, Subclass 476 (Skilled – Recognised Graduate) visa. He has remained onshore since.
On 21 July 2021, the applicant applied for a protection visa application. That application was refused by the delegate in a decision made on 12 October 2021.
On 10 November 2021, the applicant applied for merits review of the delegate’s decision to refuse his application for a protection visa.
Claims:
The applicant’s protection claims are set out in his protection visa application forms, written claims, and the delegate’s decision.
Compulsory military service
The applicant claims he has been asked to return to Azerbaijan for his compulsory military service. He claims the military service authorities have called him several times and have been looking for him at his parent’s apartment. He claims the police visited his parent’s apartment and they are still looking for him.
The applicant claims Azerbaijan has been in conflict with Armenia since 1990 and had a war at the end of 2020. He claims he faces two years of military service. He claims he will be imprisoned for five years if he fails to comply.
The applicant claims the authorities will immediately take him to do military service in the area where he was protesting for years, and he will be deployed near the border with Armenia.
The applicant claims he will be forced to support violence as a soldier.
The applicant claims he fears military service against his will, and he may be killed while on service or imprisoned if he fails to comply with the military service requirements.
The applicant claims he will face problems with his life, health, and freedom in Azerbaijan.
The applicant claims his brother completed military service over 10 years ago and was sent to the [particular] border with Armenia. He claims his brother did not suffer any physical harm but suffered mental harm. He claims his brother was extremely aggressive when he returned from service, but that was resolved after some time.
Political opinion
The applicant claims that because he previously protested and due to his political views, people in the military and the community will torture him and he could be killed or injured.
The applicant claims he faces abuse and assault due to his political opinion. He claims he has remained critical of the security policy of Azerbaijan and has opposed the human rights violations in the Nagorno-Karabakh area. He claims he has been raising his voice against the conflict for several years and he has expressed his views on several occasions.
The applicant claims people in his country will consider him as an Armenian.
The applicant claims the police may charge him with random crimes and jail him.
The applicant claims that during school discussions about the Azerbaijan and Armenian conflict, he spoke about his views on the situation. He claims that after the meeting, his schoolmates attacked him, leading to bruises on his body, a broken nose and bleeding. He claims his mother took him to a hospital to treat his injuries and he had to return to the hospital for a nose operation. He claims he did not go to the police, as they are corrupt and would not help him.
The applicant claims he attended about three strikes as a protester while at university in Azerbaijan. He claims he tried to hide this from his university, as he might lose his admission or be required to provide a reasonable excuse. He claims he had publications in [various social media platforms] and interacted with other students.
The applicant claimed during his protection visa interview that the last time he did his social media activities was in 2020 when he was already in Australia. He claims he had discussions with a group in [a platform].
The applicant claims that in Azerbaijan, he had social media activities mainly through [another platform], but not as widely as he is doing in Australia because he would be in danger. He claims he often engaged in social media before strikes or if there are discussions about that or when he sees incidents of injustice.
The applicant claims he also did social media activities while in [Country 1].
The applicant claims he has expressed his displeasure against the state institutions and police and against high unemployment.
The applicant claims he fears the authorities will imprison him for his political views, as well as people in the community, particularly from his hometown school or university, will assault him for his opposition to the conflict in Azerbaijan, especially as he was vocal against the deaths in November 2020. He claims he received threats on social media.
Christianity
The applicant claims he faces oppression for being a Christian.
The applicant claims his family are unhappy about him becoming a Catholic. He claims he became a Catholic in Azerbaijan but was not able to progress it at the time.
The applicant claims he attended church every Sunday in [Country 1]and Australia.
The applicant claims he developed his interest in Christianity while he was a student. He claims he started reading the Bible and had conversations with some Russian friends.
The applicant claims he has not been baptised.
The applicant claims he fears that he will not be able to freely practice as a Catholic in Azerbaijan, because the religion there is mainly Muslim. He claims there is no Catholic church in his hometown and there is no chance for him to attend Bible study.
The applicant claims the Muslims do not like other religions and he faces verbal abuse and arguments for this reason.
Forced marriage
The applicant claims his family is forcing him to marry against his will. He claims his father wanted him to marry his friend’s daughter, but he refused and said that he wanted to continue studying.
The applicant claims he was admitted to a master’s degree in [Country 1]and his mother supported his decision to leave Azerbaijan, however his father still has the final say relating to his marriage.
The applicant claims his mother and aunt wanted him to marry a distant relative from their culture in [Country 2]. He claims his aunt puts pressure on him.
The applicant claims that in 2017, he met [Ms A], but his family did not accept their relationship despite them being together for over three years. He claims [Ms A]comes from a different religion and nationality, and his family do not know her.
The applicant claims that after his breakup with [Ms A] due to his criminal proceedings, his family are placing more pressure on him to agree to marry someone from his homeland. He claims he fears his family will force him again if he returns to Azerbaijan.
The applicant claims that forced marriage will destroy his life, as he is no longer looking for a female partner.
Bisexuality
The applicant claims that due to his experience and the injustice he has faced, he now thinks he does not want a female partner anymore. He claims his country, its society and his family discriminate against this behaviour.
The applicant claims that people in Azerbaijan do not have a voice on their sexual partners and this is a basis of strong discrimination.
The applicant claims he identifies as bisexual, but it is something he did not want to speak about or include in his application.
The applicant claims he first realised he is bisexual in [Country 1] sometime in 2018 or 2019. He claims he had a female partner, and he was trying to be loyal to her. He claims he suspects his partner understands about his sexuality. He claims his partner is nice to him, but she disappointed him in many ways and for that reason he is considering moving
forward to seek a male partner.
The applicant claimed during his protection visa interview that he has not told anyone that he is bisexual except for in the protection visa interview.
Unemployment
The applicant claims that if he returns to Azerbaijan, he and his family will be in great mental and financial hardship as he financially supported his family while working in [Country 1]and Australia.
The applicant claims his mother is an [occupation deleted]while his father works as a driver, both earning a total of AUD $300 per month. He claims his [close relative] has a disability and requires constant support.
The applicant claims he will be unemployed in Azerbaijan, because of the huge unemployment and corruption there.
The applicant claims the only solution is for him to marry beneficially.
State protection
The applicant claims he asked for help from many state organisations, but they did not assist him.
The applicant claims the authorities will not protect him, because they will punish him as a lesson to others who oppose the government. He claims the authorities will also not be able to save him from the community’s aggression.
The applicant claims he left Azerbaijan due to dictatorship and corruption in state institutions and the police.
Internal relocation
The applicant claims he moved from [City 1]to the capital, but he faced the same issues.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms, which were lodged on 21 July 2021;
(b)the applicant’s identity documents provided to the Department, being a copy of his passport, birth certificate, [Country 1] temporary resident card and [Country 1]driver licence;
(c)the protection visa decision record dated 12 October 2021 (delegate’s decision);
(d)the application for review form, which was lodged on 10 November 2021 and included a copy of the delegate’s decision;
(e)Department file [number deleted] concerning the applicant’s protection visa application, which contains all supporting evidence submitted to the Department, including:
·statements from the applicant responding to question 76 of Form 866C of his partner visa application;
·an undated letter issued by [Mr A], Head of the [City 1] City Department of the State Service for the Mobilisation and Military Service Conscription;
·an extract from the applicant’s inpatient medical card dated 24 September 2021;
·copies of his qualifications;
·a copy of the United States Department of State’s 2020 Human Rights Report on Azerbaijan; and
·a copy of Human Rights Watch’s report on the events of 2019 in Azerbaijan;
(f)all documents submitted to the Tribunal in support of the applicant’s review application, including:
·an undated statement from the applicant submitted on 21 November 2021;
·a statement from the applicant dated 2 November 2021;
·copies of courses the applicant undertook at [a] Correctional Centre and other prison records;
·an achievement certificate and tutor’s comments issued by the [Correspondence School];
·achievement certificates from TAFE Queensland and third party organisations;
·documents submitted in support of his claims concerning unemployment and his family’s financial hardship, including evidence of his mother’s salary;
·financial records;
·a copy of the transcript of the sentence remarks for his sentence in the District Court of Queensland in Brisbane [in] November 2021;
·a copy of the verdict and judgement record dated [in] November 2021;
·a letter addressed to the Department requesting the restoration of his Subclass 476 visa and all attachments to that letter;
·a statement from the applicant’s representative dated 15 February 2022;
·an affidavit filed on behalf of the applicant in the Brisbane Magistrates Court on 3 December 2021 in relation to the criminal proceedings;
·an affidavit filed on behalf of [Ms A]in the Brisbane Magistrates Court [in] December 2021 in relation to the criminal proceedings;
·copy of email correspondence about the RTI application lodged by the applicant with Queensland Corrective Services (QCS);
·copy of applicant’s case file from QCS for the period 1 January 2021 to 9 February 2022;
·a statement from applicant’s previous employer- [Mr B] dated 15 January 2021;
·a copy of the prisoner employment position description document and communication from QCS vocational training officer;
·copies of requests made by the applicant to QCS in relation to attending church on Sundays;
·a copy of the personal circumstances form that the applicant submitted to the Department on 22 January 2022;
·a copy of a statement dated 18 January 2022 from the applicant addressed to the Department;
·a copy of a statement dated 19 January 2022 from [Ms A] addressed to the Department;
·a copy of a statement dated 5 February 2022 from [Ms B] ([Ms A]’s psychologist) addressed to the Department;
·a copy of a statement dated 3 February 2022 from [Ms C] ([Ms A]’s employer) addressed to the Department;
·a copy of a statement dated 24 January 2022 from [Mr C] (applicant’s work colleague in Australia) addressed to the Department;
·a copy of a statement dated 24 January 2022 from [Ms D] (applicant and [Ms A]’s mutual friend) addressed to the Department;
·a copy of a statement dated 31 January 2022 from [Mr D] (applicant and [Ms A]’s mutual friend) addressed to the Department;
·a copy of a statement dated 1 February 2022 from [Ms E] (applicant and [Ms A]’s mutual friend) addressed to the Department;
·screenshots of posts made by the applicant on [social media];
·photo of the applicant participating in a demonstration and photos of the applicant participating in a LGBTI gathering;
·a copy of an undated medical re-examination request letter addressed to the applicant issued by [Mr A] (Head of the [City 1] city department of the State Service for the mobilization and Military Service Conscription in Azerbaijan);
·a copy of applicant’s medical examination report dated 24 September 2021 issued by The Ministry of Health of the Republic of Azerbaijan;
·a copy of a statement dated 15 January 2022 from [Mr E](applicant’s ex-partner) addressed to the Department;
·copies of international money transfers;
·a copy of a reference statement dated 18 November 2021 stating [the](applicant’s mother) employment and residence details in Azerbaijan;
·a copy of [Mr F] medical condition from The Ministry of Labor and Social Protection of Population, Azerbaijan;
·an undated English translated copy of statement by the applicant’s mother;
·a screenshot of the applicant’s online ImmiAccount;
·a statement from [Ms A] dated 16 February 2022 addressed to the Tribunal;
·a statement from [Mr G] (applicant’s friend from [Country 1]) dated 27 February 2022 addressed to the Tribunal;
·a statement from [Ms F] ([Ms A]’s mother) dated 29 January 2022 addressed to the Tribunal;
·a statement from the applicant’s mother dated 8 January 2021 addressed to the Tribunal; and
(g)country information on Azerbaijan, as set out below.
Country of reference:
The applicant claims to be a citizen of Azerbaijan. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Azerbaijan is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal on 22 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A].
The applicant was represented in relation to his review application and the applicant’s representative attended the hearing by telephone from South Australia.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Azerbaijan. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Azerbaijan. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Azerbaijan.
The Tribunal discussed his claims as summarised in the applicant’s protection visa application and the delegate’s decision. He confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. He stated they were and that he did not need to change them.
The Tribunal took the applicant to the material that he had submitted. It asked if he had read and understood the delegate’s decision. He said that he had. The Tribunal noted that the delegate had made some criticisms of his claims and evidence and asked if the applicant had understood them. He said that he had.
The applicant confirmed that his claims before the Department had initially been confined to his political views and the prospect of forced marriage but that, during his interview with the delegate, additional matters emerged which were now incorporated in the application to the Tribunal.
The Tribunal noted that the delegate had found that the applicant’s claims as to his religion and his bisexuality were not credible. In particular, the delegate was unconvinced about the applicant’s claims as to his Catholic faith. The Tribunal asked if he could expand on the claims as to his Roman Catholicism. The applicant said that he had started to become interested in Christianity when he was still in Azerbaijan. He learned about it in discussion with his [Country 2] friends, who were Orthodox. He started reading the Bible. His interest in Catholicism developed when he was in [Country 1]. There was a cathedral near where he was staying. His girlfriend at the time was a [Country 1] Catholic and he attended the cathedral with them.
The Tribunal said that it assumed, from his family name, that his own family had always been Muslim. He said that was correct, but that he had never been observant. He said that his interest in Christianity began in about 2012. It had been difficult to progress that in Azerbaijan but, when he arrived in [Country 1] in 2014, he was able to express and explore this interest.
The Tribunal asked what it was that interested the applicant in Christianity when he was still in Azerbaijan. He said that Islam did not really interest him and that he knew that Christianity was one of the first religions. He discussed this interest with Orthodox friends. The Tribunal asked what had caused him to leave Islam. He said that he did not accept its prohibition of alcohol or its dietary restrictions, which seemed arbitrary. He also saw that Christianity and Islam had many common features but that, Christianity being older, much of Islam must have come from Christianity.
The Tribunal asked about the development of this religious affiliation in [Country 1]. The applicant said that a friend in the dormitory in which he was staying attended church frequently and that he asked if he could come along. He said he did not speak [the language from Country 1] and that friends at the church could explain and translate for him.
The Tribunal asked the applicant what he could tell it about the Catholic faith. He said that he believed in Jesus Christ, who is the saviour of all who believe in him. He said that he
believed in salvation and the afterlife. He said that Jesus would take everyone who believed to the Kingdom of God. The Tribunal asked if there were elements of the Catholic liturgy that he knew and was able to recite. When asked if, for example, he knew the Lord’s Prayer, he was able to recall a two-line segment of the prayer but continued it with a short segment of the Hail Mary Prayer. When corrected by the Tribunal, he recited another one- line segment of the Lord’s Prayer, but clearly did not recall it beyond that.
The Tribunal suggested to the applicant that, amongst the material he had submitted, were some religious observance requests he had made to Corrective Services while on remand. He agreed. The Tribunal asked if this request was to attend a Catholic church service. He said there was no Catholic service offered: there was a chaplain but the version of Christianity the chaplain offered was not specific. The Tribunal asked the applicant how frequently he had attended mass while in Australia. He was not familiar with the term “mass”. He said he was not able to attend church in Australia because the COVID lockdown commenced very shortly after he arrived in 2020. The Tribunal asked which church it would have been, had he been able to attend. He said it was in [Suburb 1]but that he had forgotten the name.
The Tribunal asked when he had last taken communion. He did not show any familiarity with the term, but claimed to have attended such a ceremony when prompted as to its features. When asked, he did not have any idea as to the origins or meaning of the bread or the wine used in the sacrament, or of the sacraments of the Catholic Church generally. He did not know how baptism was performed.
The Tribunal returned to the religious observance requests to Corrective Services. It put to him that his file recorded that, on 6 April 2021, he had submitted a request form to attend Muslim prayers. He accepted that this was correct. He said the reason for it that he had a friend, [Mr G] from Afghanistan, who was housed in a different block of the remand centre. [Mr G]had passed a message to him suggesting they would be able to meet at Muslim prayers. He said that was the only time he had requested to attend Muslim prayers.
The Tribunal put it to the applicant that the first request on the file to attend a Christian service was in June 2021. He said that he had submitted requests from March 2021, but these did not seem to have been recorded on the file. The Tribunal suggested that he had first made such a request after he had been visited by lawyers preparing his protection visa application, and that he was attending services in order to support a religious claim. He said this was not true. The Tribunal suggested that this conclusion might be available on the evidence and supported by the applicant’s very limited knowledge of Catholic practice and doctrine. He said he disagreed with this conclusion, because he had been attending services since early March. He said that, at that time, he had no idea that he could make a protection claim based on his religion. Further, he said, at that time, he was not anticipating making a protection visa application because he was certain he would be released and that his skilled visa would not be cancelled. As to his knowledge of Catholic practice, he acknowledged that there some deficits. He said he preferred to think of himself as simply Christian because Catholics believe some things that are not in the Bible. He gave purgatory as an example, but could not specify more. The Tribunal suggested that his evidence conveyed the impression that he had obtained some extremely general information about Christianity, and small assortment of Biblical stories, but nothing that might be expected of an 8-year convert to Catholicism or someone with continuing membership of the Church.
The Tribunal asked the applicant if his parents were aware of his conversion to Catholicism. It noted that his mother’s letter of 8 January 2021 reads:
I know my son has rejected Islam and become a Christian … after returning to Azerbaijan, [applicant]’s father will take [the applicant] to Mosque and turn him into a Muslim. It is his father’s responsibility.
He said that this was correct.
The Tribunal turned to his political claims. It asked the applicant whether he identified with a political movement. He said that, when he was in Azerbaijan, he participated in organised political protests. However, since leaving Azerbaijan, he has lost touch with ‘those groups’ and expresses himself individually. He said he had been active on social media and responds to events he learns about through the news. The Tribunal asked if he could define his political views. He said he disagreed with the political views of the Azerbaijani regime and that an opposition is needed to show its crimes and misdeeds to the world. He said the dynastic nature of the presidency is completely wrong. The Tribunal took the applicant to the social media posts he had submitted. It asked if these indicated a political movement with which he identified. He said there was almost no opposition in Azerbaijan and there is no movement with which he could identify. He said that he is not a member of a party. He said that he knew some protest organisers but could not say if they were part of an organised group. The Tribunal said that what the applicant had been telling the Tribunal was very vague: he had not expressed a political view per se, other than to say that he opposed the regime. He said he mainly expressed his views individually but, when he found others who held similar views he would seek to participate in their activities. The Tribunal asked where he found these other people. He said it would be through social media: he followed the accounts of opposition activists. The Tribunal asked where in the social media screenshots he had submitted it could find the accounts of opposition activists and his engagement with them. He said he obtained information from a variety of sources and posted them online with his comments.
The Tribunal turned to the applicant’s claims relating to his sexuality. It asked why the evidence provided to the Tribunal, including [Mr E]’s statement and the social media posts, was so very different to the evidence he had given to the delegate. He said that he did not expect to speak about this issue with the delegate and did not properly describe it. He accepted that he had previously denied participating in a Pride parade but told the Tribunal that he had in fact participated in two of them and had provided photographs and videos to demonstrate that. The Tribunal also put it to him that he had denied to the delegate having ever been in a same sex relationship but was now claiming that he had in fact been in one. He said that he had told the delegate that he was bisexual. The Tribunal put it to him that his answer had gone on to deny ever having acted on any same sex attraction. He said that he did not consider the encounter with [Mr E]to be a relationship. The Tribunal suggested that his evidence was different to what he had told the delegate. He said that, to him, a relationship was different: when he was younger, he had partnerships with many people but he did not call them relationships. The Tribunal suggested that this answer appeared to be an attempt to create an artificial point of difference with what he told the delegate, because he had had the opportunity to claim that he had been in some sort of a relationship, or had some sort of experience, with a man and he had not done so. He said that he had not been planning to make that disclosure at the time and did not feel comfortable doing so. He said the issue had arisen in the course of discussing his claims about forced marriage, when he had said he was not interested in females anymore.
The Tribunal turned to his claims about forced marriage. He said that he maintained that claim. The Tribunal asked about the person his parents wanted him to marry. He said his father wanted him to marry his friend’s daughter after he graduated from his bachelor’s degree. He said he had told them he intended to undertake postgraduate studies abroad. He said his mother supported him and was able to persuade his father to postpone the marriage. The Tribunal asked if his family still insisted on this marriage. He said it did. The
Tribunal asked if the intended bride was still single, after the passage of some 10 years. He said this marriage was no longer in contemplation, but that he knew his parents were still looking for a wife for him from a similar background as them. He said he had frequently objected, on the basis that he has a relationship with[Ms A]. The Tribunal put it to him that his mother’s letter to the Tribunal reads:
[the applicant] and [Ms A] loves each other, and they deserve to be together and to be happy.
He agreed, but said that the acceptance of [Ms A] was conditional upon her being able to join him in Azerbaijan which, he said, was impossible. Therefore, if returned to Azerbaijan, he would be forced into a marriage yet to be arranged.
The Tribunal turned to the applicant’s claim of economic hardship. It asked if there was something about the economic situation in Azerbaijan that affected him to a greater extent than it did the population generally. It suggested to him that he held advanced qualifications in a sought-after field and that his economic prospects were probably superior to most others’. He said that it was impossible to find work in Azerbaijan, even with his qualifications. He said that a person with his political views and personal characteristics would find it impossible to find work without a well-connected sponsor, or without paying someone to advance his career. He said the corruption is such that it would cost the equivalent of AUD$10,000 or $20,000 and even the payment of such a sum would be no guarantee of long-term employment.
The Tribunal turned to the applicant’s claims relating to compulsory military service. He agreed that this was required at any time until the age of 35. The Tribunal said that the written material it had seen comprised a letter asking the applicant to attend for a physical examination. The Tribunal asked if there was any further correspondence, such as a letter asking why he had not attended. He said the letter in evidence was the start of the process of being conscripted. He said that the police had visited his family home to charge him with desertion. The Tribunal asked if there was any documentary support for that claim. He said that the Azerbaijani Criminal Code, articles 321.1 and 321.2 applied to him. The Tribunal asked if there was any material indicating that it was intended that he should be charged under these provisions. It suggested that his mother had said nothing about this in her statements, which would be surprising if his claims were correct. He acknowledged that there was nothing in writing to suggest that he was actively being sought, but that his parents had asked for a document from the police and had been refused. He said that the police officer had told his parents that the authorities knew the applicant had been seeking a protection visa in Australia and that he obviously wanted such a document to support his claims, and that therefore he would not receive one.
The Tribunal turned to the applicant’s claims to have been assaulted by reason of his political opinions. The Tribunal noted that he had submitted medical records that indicate that he had been admitted to hospital for correction of a[information deleted]. He said that was correct. The Tribunal suggested that there was no reference in that record that the [condition]was the result of a break or to connect it to an assault. He said that the operation took place two years after the incident. He said that it was required because his nose was broken and, if his nose had been broken, he must have been beaten. The Tribunal suggested that it could not necessarily draw that conclusion because the condition could have arisen in variety of ways, including congenitally, from participation in a sport, or as a result of an accident. He accepted that the report did not indicate a likely cause of the condition. The Tribunal suggested, for instance, that it did not have a record that the applicant had attended at a casualty ward with a broken nose, only that he had been treated for a nasal condition some two years later. He accepted that he did not have such a record.
The Tribunal took the applicant to the photographs he had submitted that show him with some grazes on his chin. He said that the injuries were the result of an assault in about 2012. The Tribunal asked if there was any way to date the photographs. He said that it was clear that he was younger at the time the photographs were taken and that the telephone he was holding was an iPhone 4, which was popular in about 2011 or 2012. He accepted that there was no objective date for the photographs.
The Tribunal took the applicant to the degree diploma he had submitted from[Country 1], which displays a photograph of him. It asked when that photograph had been taken. He said it was taken in 02017, when he graduated. The Tribunal suggested that he looked considerably younger in that photograph than in the photographs referred to in paragraph 87 above. He said that the diploma photograph had been Photoshopped for aesthetic purposes and that he never really looked like the image in that photograph.
The Tribunal asked the applicant what evidence it should expect to hear from [Ms A]. He said that she knew some details about his past, but no detailed knowledge of his politics. He said she also had some knowledge of his bisexuality. The Tribunal asked if she shared his religion. He said that she is not very religious but had attended church with him in [Country 1]. He said it was the Cathedral in[Country 1]. He also attended an Orthodox church from time to time with[Ms A]’s family, [Ms A]’s mother being from[Country 2]. He could not recall if either church was named after a saint.
The Tribunal heard from[Ms A]. Ms [A]told the Tribunal she and the applicant had been in a relationship for almost five years. In response to the Tribunal’s question, she said she would describe herself as a religious person. She gave her religion as Russian Orthodox. She described the applicant as a Catholic. She said she and the applicant had not attended a church in Australia because of the pandemic lockdowns. When asked what church she would attend should she choose to, she said that there was a Catholic church across the road from where she lives, on [Street name deleted] in [Suburb 1].
Ms [A]confirmed that she met the applicant in [Country 1] and attended church with him at both the Catholic cathedral and a Russian Orthodox church. The Tribunal asked if she was aware of the applicant’s political views as they relate to Azerbaijan. She said that he was against what is happening in Azerbaijan and what is happening between Azerbaijan and Armenia. She said that he is against corruption.
The Tribunal asked if her family knew the applicant’s family. She said that they had never met face to face, but had communicated over the phone and had invited each other to meet. The Tribunal asked if the applicant had told her what might happen to him if he returned to Azerbaijan. She said that, because he had not done his military service, he was at risk of being imprisoned. She said that, because he is opposed to the war between Azerbaijan and Armenia, he might be beaten and subjected to suffering.
At the Tribunal’s invitation, the applicant reiterated that he feared harm arising from his failure to present for military service and, once he is pressed into service, because of his political views. He said he had submitted an assessment by Human Rights Watch of custodial conditions, including torture, for draft evaders and dissentients in Azerbaijan.
The Tribunal allowed time for making post-hearing submissions. These were received on 5 April 2022 and are discussed further below.
Assessment of claims and evidence, and findings
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for
the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.1
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.2
The Tribunal has also had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual
1 Guidelines on the Assessment of Credibility (July 2015) Available at es/Guidelin es-on-Assessment-of-Credibility.pdf
2 Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal notes that the applicant entered Australia on a VF 476 (Skilled – Recognised Graduate) visa [in]February 2020 and did not apply for the protection visa until 21 July 2021, about month before cessation of the skilled visa. He had been charged with criminal offences [in] January 2021. The delegate made no finding in respect of the delay. Given the nature of the visa originally granted to the applicant, which provides a pathway to permanent residence, and the circumstances in which he ceased to be employed, I do not consider that his delay in applying for the protection visa necessarily raises any credibility issues.
It is necessary at this point to consider the weight to be given to the various letters submitted by the [applicant’s mother] , Ms [A]’s mother (Ms[G]), and the applicant’s friends and colleagues in support of his claims. None of these are accompanied by documents attesting to their identity. [The applicant’s mother]short undated letter is in Azerbaijani accompanied by a locally certified English translation, and I accept it as originating from her. Her much longer letter of 8 January 2021 is in English, with no indication it is a translation. The letters from [Ms G]and [Mr G]are expressed to have been sent from [Country 1]and it seems unlikely that they were composed in English (neither writer having indicated that they are proficient in English or have an English-speaking background), although they are not accompanied by a letter in their original language or any indication they are translations. They do, however, have some common features with the letters from [Ms C], [Mr C], and [Ms D](these writers being resident in Australia) and from [Mr E](a US citizen resident in [Country 1]). All of these give their name, address and, in most cases, email address and telephone number at the top right of the first page, right justified. The date, with the exception of Mr [G]’s letter, is given in the same format (e.g. 29 January 2022, left justified) and follows the salutation – in each case, “Dear Department of Home Affairs” or “Dear Administrative Appeals Tribunal” – and are signed off “Kind regards” or “Yours sincerely.” All display a similarly stilted style of English, which may be explicable in the cases of Ms [C], Mr [C] and Mr [D], but less so in the case of Mr [E]. In any event, with the exception of [the applicant’s mother]’s letter of 8 January 2021 and Mr [E]’s letter, this material contains very little in the way of first-hand information about the applicant’s claims and would be given little weight even were I confident of their provenance. Those letters that do attest to some personal knowledge of the applicant’s claims are discussed further below.
The Tribunal has had regard to the following country information on Azerbaijan relevant to the applicant’s claims.
Political opinion
The United States Department of State’s 2020 Human Rights Report on Azerbaijan3 reports the following on government critics, internet freedom and freedom of peaceful assembly:
The law prohibits arbitrary invasions of privacy and monitoring of correspondence and other private communications. The government generally did not respect these legal prohibitions.
While the constitution allows for searches of residences only with a court order or in cases specifically provided for by law, authorities often conducted searches without warrants. It was widely reported that the State Security Service and the Ministry of Internal Affairs monitored telephone and internet communications (see section 2.a., Internet Freedom), particularly those of foreigners, prominent youth active online, some political and business figures, and persons engaged in international communication. Human rights lawyers asserted that the postal service purposely lost or misplaced communications with the ECHR to inhibit proceedings against the government.
…
There were reports authorities fired individuals from jobs or had individuals fired in retaliation for the political or civic activities of family members inside or outside the country.
While the law provides for freedom of expression, including for the press, and specifically prohibits press censorship, the government habitually violated these rights…
Freedom of Speech: Although the constitution provides for freedom of expression, the government continued to repress persons it considered political opponents or critics. The incarceration of such persons raised concerns regarding authorities’ abuse of the judicial system to punish dissent. Human rights defenders considered five journalists and bloggers to be political prisoners or detainees as of year’s end. A number of incarcerations were widely seen as connected to the exercise of freedom of expression.
The constitution prohibits hate speech, defined as “propaganda provoking racial, national, religious, and social discord and animosity” as well as “hostility and other criteria.”
In addition to imprisonment, the government attempted to impede criticism through other measures, including placing activists in administrative detention for social media posts critical of the government. For example, on April 22, the Surakhani District Court sentenced Popular Front Party activist Arif Babayev to 10 days of administrative detention for dissemination of prohibited information on the internet…
During the year reports continued that the government restricted or disrupted online access. During a period of martial law from September 27 to December 12 that the government imposed following the outbreak of violence, authorities blocked access to some websites and social networks. Internet blockages occurred from the beginning of the violence until November 14. Blockages included social media sites such as YouTube, Twitter, and Instagram and impeded the functioning of many virtual private networks (VPNs). Throughout the year authorities continued to block independent media websites that offered views differing from government narratives and to incarcerate persons who expressed critical views online. Human rights defenders also reported that individuals were regularly summoned to police stations across the country, forced to delete social media posts that were critical of the government, and threatened with various punishments if they did not comply. On multiple occasions the government selectively cut or degraded internet access during political protests.
…
There were strong indications the government monitored the internet communications of civil society activists. For example, activists reported being harassed by police and forced to
3 United States Department of State, ‘2020 Human Rights Report: Azerbaijan’ (30 March 2021).
delete critical [social media] posts under threat of physical abuse. During the year activists were questioned, detained, and frequently sentenced to administrative detention for posting criticism of government actions and commenting on human rights abuses online. On January 14, Azerbaijan Internet Watch reported phishing attacks against several civil society figures and an online news platform. The attack sought to disable antivirus software and surreptitiously record key strokes. Based on forensic research, Azerbaijan Internet Watch and its partner Qurium--a media foundation with expertise in digital forensic investigations-- concluded the attacker was connected with the government.
…
The government consistently and severely restricted freedom of peaceful assembly. Authorities at times responded to peaceful protests and assemblies by using force against or detaining protesters.
Prior to the imposition of restrictions aimed at combating COVID-19 in March, authorities prevented attempts by political opposition groups to organize demonstrations…
In respect of his political activities, the applicant claimed to be opposed to the Azerbaijani regime, specifically its repressive nature, its corruption, its dynastic presidency and its belligerence towards Armenia. In support of these claims, in addition to his oral evidence as recounted at paragraphs 81 and 86 above, he submitted a number of screenshots of social media posts. These are summarised, with commentary, in the post hearing submission. The posts comprise:
·A post dated October 2013 sharing a news article relating to the Azerbaijan-Armenia border conflict, with the applicant’s comments about President Aliyev’s conduct;
·A post dated 11 October 2013 sharing a YouTube news item relating to the presidential election, with the applicant’s comment, “The result of a rigged election. Hey people, until when will we ignore this dictatorship or corruption? Enough is enough, isn’t it time to say enough is enough.”
·A post dated December 2013, referring to corruption at a state university;
·A post dated 27 December 2014, sharing an article from the Azerbaijan State Oil Academy (from which the applicant graduated in 2012), with commentary by the applicant opposing compulsory military service, describing President Aliyev as a dictator, and claiming to have left Azerbaijan for his freedom;
·A post dated 12 February 2014, sharing a YouTube news item about the dismissal of an Azerbaijani Education Minister, with commentary by the applicant supporting the Minister and calling for a rally against the dismissal.
·A post dated 29 May 2014, sharing an article about an arms purchase from Russia, with commentary by the applicant criticising both the sale and Presidents Aliyev’s and Putin’s motives for it;
·A post dated 15 March 2015, sharing a news article by the journalist and human rights activist Mehman Huseynov concerning police brutality at a protest;
·A post dated 28 December 2015, sharing a news article by Mehman Huseynov concerning corruption in hiring practices and workplace safety in state enterprises, with commentary by the applicant.
·A post dated 1 July 2016 sharing a news article by Mehman Huseynov concerning possible military intervention in Karabakh with commentary by the applicant;
·A post dated 26 October 2016 sharing a YouTube news article concerning electoral irregularities with commentary from the applicant advocating protests and the defence of human rights in Azerbaijan;
·A post dated 1 January 2017 sharing an article by Mehman Huseynov with commentary by the applicant as to inefficiency in the Azerbaijani social welfare administration;
·A post dated 3 December 2017 sharing a news article with commentary by the applicant comparing forced attendances at government rallies and voluntary attendance at opposition rallies;
·A post dated 21 March 2018, sharing an article from opposition media about police brutality towards protestors, with commentary by the applicant;
·A post dated 19 December 2018, noting comparing the changes in government in Georgia with the continuing regime in Azerbaijan and advocating a revolution and an end to dictatorship;
·A post dated 18 January 2019, sharing an article from a human rights organisation concerning the detention of Mehman Huseynov, with commentary by the applicant calling for Huseynov’s release;
·A post dated 20 January 2019 sharing a YouTube news item about Mehman Huseynov, with commentary by the applicant in support of Huseynov;
·A post dated 22 June 2020 concerning COVID policy in Azerbaijan with commentary including, “The day will come Revolution will be, and all corrupted organizations and Dictatorship will be destroyed.”
·A post dated 7 October 2020 sharing a news video featuring President Putin, with commentary from the applicant, “In order to sell weapons, you need to support war! I arm the poor for free so that the rich can buy.”
·A post dated 9 November 2020 sharing a news item bearing the image of President Aliyev apparently declaring victory, with commentary by the applicant, “If it was achieved peacefully through diplomacy, it would be called victory.”
·A post dated 10 November 2020 sharing a news item bearing the image of President Aliyev, with commentary by the applicant, “Our dictator calls this a victory. Victory cost thousands of lives and this is called a victory? I congratulate everyone on the occasion of Terror Day. Congratulation Big day of terror.”
The material submitted by the applicant as to his political claims is considerably greater in volume that that submitted to the delegate. In particular, the social media posts described above were not presented to the delegate.
At the hearing, the applicant was questioned at some length about his political views and the extent to which his actions in support of those views might expose him to a risk of harm at the hands of the Azerbaijani regime, or of its supporters. The applicant described his participation in rallies and other events, but said that opposition activity in Azerbaijan in suppressed to the point that organised party politics is not possible and described anti-
regime protests as having a spontaneous or organic character. When it was suggested to him that his knowledge of opposition political activity appeared vague, he answered that this was the nature of such activity. This is consistent with the country information cited above and the information provided with the post hearing submission. I accept that the applicant genuinely holds the views the subject of his claims.
The applicants’ claims to have been assaulted at school and subsequently by reason of his political views are not implausible, although the Tribunal can give only limited weight to the documentary material he provided in support of them. The medical records relating to the treatment he received for [condition deleted]make no mention of any cause of the condition and there are no earlier records of presenting for treatment for a broken nose which, on his account, was sustained some two years earlier. His mother’s letter of 8 January 2021 provides details supportive of the applicant’s claims, but for the reasons given in paragraph 104 above, I am inclined to treat it with some caution. The photographs he submitted of the (apparently superficial) grazes he sustained to his chin are not dated and there is no additional material to attribute them to an assault.
The Tribunal has given careful consideration to the screenshots of the applicant’s social media accounts. It gives weight to the fact that they appear to be contemporaneous expressions of the applicant’s political views, addressed to the issues he told the Tribunal most exercised him about the Azerbaijani regime. The Tribunal also gives weight to the fact that those issues are relevant to the applicant’s own circumstances and personal concerns, for example, maladministration in tertiary education, corruption in oil industry employment, military service in the context of Azerbaijani foreign policy, and economic conditions. The Tribunal has some reservations about the extent to which his social media activities might have brought him to the attention of the government: for the most part, his political commentary is made only a couple of times a year, and there is no way to gauge the extent to which they were published (there being no apparent reaction to any of the posts, and there being no indication as to the privacy settings on his account). The applicant’s evidence is that police raised these posts with his parents when seeking his whereabouts. This is not referred to in her short undated statement, but is detailed in her statement of 8 January 2021 which, as noted above I do not consider reliable. However, on balance, the Tribunal considers the applicant’s claims as to his political opinion to be genuine, and to be of the nature that the country information suggests would bring him to the adverse attention of the Azerbaijani regime.
Christianity
The United States Department of State’s 2020 International Religious Freedom Report on Azerbaijan4 reports the following:
The constitution stipulates the separation of religion and state and the equality of all religions. It also protects the right of individuals to express their religious beliefs and to practice religious rituals, provided these do not violate public order or public morality. The law prohibits the government from interfering in religious activities…
…
The U.S. government estimates the total population at 10.2 million (midyear 2020 estimate). According to 2011 data from the State Committee on Religious Associations in Azerbaijan (SCWRA) (the most recent available), 96 percent of the population is Muslim, of which approximately 65 percent is Shia and 35 percent Sunni. Groups that together constitute the remaining 4 percent of the population include the Russian Orthodox Church; Georgian
4 United States Department of State, ‘2020 Report on International Religious Freedom: Azerbaijan’ (12 May 2021).
Orthodox Church; Armenian Apostolic Church; Seventh-day Adventists; Molokan Church; Roman Catholic Church; other Christians, including evangelical churches, Baptists and Jehovah’s Witnesses; Jews; and Baha’is.
…
Christians live mainly in Baku and other urban areas…
…
The constitution stipulates the separation of religion and state and the equality of all religions and all individuals regardless of belief. It protects freedom of religion, including the right of individuals to profess, individually or together with others, any religion, or to profess no religion, and to express and spread religious beliefs. It also provides for the freedom to carry out religious rituals, provided they do not violate public order or public morality. The constitution states no one may be required to profess his or her religious beliefs or be persecuted for them; the law prohibits forced expressions or demonstrations of religious faith.
…
Civil society representatives stated citizens continued to tolerate and, in some cases, financially support “traditional” minority religious groups (i.e., those historically present in the country), including Jews, Russian Orthodox, and Catholics. Groups viewed as “nontraditional,” however, were often viewed with suspicion and mistrust.
…
Some minority Christian communities said the SCWRA made efforts to create more favorable conditions for their activities than in prior years, such as by becoming more responsive to their requests and concerns and establishing closer communication with them. The groups said there were fewer instances of officials raiding the premises of religious communities or detaining and fining individuals in connection with peaceful practice of their religion or beliefs than in years past.
…
During the year, the SCWRA registered 14 new religious communities (12 Muslim and two Christian), compared with 34 religious communities registered in 2019 (31 Muslim and three Christian). There were a total 963 registered communities at the end of the year, of which 37 were non-Muslim – 26 Christian, eight Jewish, two Baha’i, and one the International Society of Krishna Consciousness. The SCWRA also said 2,250 mosques, 14 churches, and seven synagogues were registered. There were 23 Christian prayer houses (worship spaces that did not have the status of a church), one Baha’i house of worship, and one Krishna Consciousness house of worship in the country at year’s end.
The applicant claims have converted to Roman Catholic Christianity. Although this would place him in a small minority in Azerbaijan, the country information does not suggest that it would subject him to any form of adverse official attention. The applicant’s claim, rather, is that his father and perhaps others in his hometown would require him to renounce his faith and return to Islam.
The applicant’s evidence to the Tribunal concerning his claimed conversion to Catholicism was not impressive (see paragraphs 71 to 80 above). In the post hearing submissions, the applicant’s representative took issue with the Tribunal noting the lack of a ‘convert’s zeal’ in his description of the rites and beliefs of the Catholic Church. For the avoidance of doubt, the Tribunal holds no expectations of the depth of feeling or understanding of an applicant’s professed faith other than that arising from the applicant’s own evidence. There is no expectation on the part of the Tribunal that a disaffection with, or general lack of interest in,
one’s religion of upbringing necessarily gives rise to a consuming interest in a different religious tradition, but this is what the applicant in this matter has claimed. He claimed to have commenced studying the Bible in 2012, while still in Azerbaijan, and to have furthered his conversion in [Country 1] over the next six years, but the knowledge he demonstrated at the hearing, allowing for the language differences, was more consistent with the short ecumenical course of study he undertook while in custody in Australia than with the narrative he had provided.
I have considered Ms [G]’s letter, which claims that she knows the applicant to be a faithful Christian, who attended church regularly and celebrated all the important Christian festivals with her family. The applicant made no mention of any Christian festivals at the hearing or the post-hearing submissions. In any event, for the reasons given at paragraph 104 above, I can give little weight to Ms [G]’s letter.
With the post-hearing submission, the applicant provided documents from the Department of Corrective Services showing that he requested permission to attend church services from 18 April 2021, and that Ms [G] mailed him some Russian Orthodox religious items in July 2021, but I give these matters very little weight against his limited knowledge of Christianity.
I accept that the applicant had some exposure to Catholic and Russian Orthodox services while in [Country 1], but am not satisfied that he would continue to profess that faith should he return to Azerbaijan. Given that there is no indication that his parents raised any objection to his lack if interest in Islam earlier in his life, I am not satisfied that any steps would be taken by his family or community in Azerbaijan to compel any form of adherence to Islam if he returned.
LGBTI
The United States Department of State’s 2020 Human Rights Report on Azerbaijan5 reports the following on LGBTI men:
A local NGO reported incidents of police brutality against individuals based on sexual orientation and noted that authorities did not investigate or punish those responsible. There were also reports that men who acknowledged or were suspected of being lesbian, gay, bisexual, transgender, or intersex (LGBTI) during medical examinations for conscription were sometimes subjected to rectal examinations and often found unqualified for military service on the grounds that they were mentally ill. There were also reports of family-based violence against LGBTI individuals, including being kidnapped by family members and held against their will. Hate speech against LGBTI persons and hostile [social media] postings on personal online accounts also continued.
Antidiscrimination laws exist but do not specifically cover LGBTI individuals.
Activists reported that LGBTI individuals were regularly fired by employers if their sexual orientation or gender identity became known.
LGBTI individuals generally refused to file formal complaints of discrimination or mistreatment with law enforcement bodies due to fear of social stigma or retaliation. Activists reported police indifference to requests that they investigate crimes committed against LGBTI individuals.
Local NGOs reported that COVID-19-pandemic-related quarantine measures compounded the impact of the discrimination already faced by members of the LGBTI community. Since these individuals regularly faced discrimination in accessing employment, they were primarily employed informally and received payment on a day-to-day basis.
5 United States Department of State, ‘2020 Human Rights Report: Azerbaijan’ (30 March 2021).
During the year the ECHR continued a formal inquiry begun in February 2019 into police raids on the LGBTI community in 2017. The raids entailed arrests and detentions of more than 83 men presumed to be gay or bisexual as well as transgender women. Media outlets and human rights lawyers reported that police beat detainees and subjected them to electric shocks to obtain bribes and information regarding other gay men. Detainees were released after being sentenced to up to 30 days of administrative detention, fined up to 200 manat ($118), or both. In 2018 some victims of the raids filed cases against the state in the ECHR.
The Netherlands Ministry for Foreign Affairs’ latest country information report on Azerbaijan6 reports the following:
In Azerbaijan, male and female homosexuality is not legally punishable or prohibited in itself. Nor does the law provide for penalties for expressing a transgender or intersex identity.311 Homosexual acts are neither formally nor legally punishable. The age of consent is sixteen years old. No distinction is made between homosexual and heterosexual relations. According to various sources, knowledge of the LGBTI behaviour or orientation of a person has not been known to lead in practice to a disproportionate or discriminatory punishment or to the execution of a sentence imposed in criminal proceedings for a crime. Nevertheless, in 2020 the LGBTI interest group ILGA-Europe ranked Azerbaijan in 49th and last place in the Rainbow Europe Index. ILGA-Europe compares the position of LGBTI in 49 European countries on the basis of 69 criteria. Azerbaijan only scored well on two criteria: blood donations and lack of laws restricting freedom of expression.
Azerbaijani society is generally fairly conservative. In Azerbaijan, homosexuality is very much a taboo subject for many people. Especially outside Baku, people who are openly LGBTI are not accepted by their families or their immediate environment. This is why most LGBTI people outside of Baku hide their sexual orientation. There is very little awareness in relation to this theme. Some residents of Azerbaijan regard homosexuality as a disease that people can be cured of.
LGBTI people who are openly LGBTI can sometimes have difficulty finding a job, which causes some LGBTI people to end up in prostitution. In addition, LGBTI people who are openly LGBTI may face discrimination at work. Sometimes, colleagues bullied LGBTI people out of their workplace when they discovered their sexual orientation. In 2014, Nefes LGBT Azerbaijan Alliance (hereinafter: Nefes) held a survey into LGBTI in a variety of work environments. In the survey, 64 percent of respondents in the 18 to 35 age group said they did not want to work with LGBTI people. Sacking an employee for his or her sexual orientation is prohibited by law. However, employers would argue that they dismissed LGBTI people for other reasons. LGBTI people usually do not dare to file a complaint or take legal action for fear that the family and the environment will find out about their sexual orientation. There are also known cases during the reporting period where LGBTI persons were evicted from their living quarters after their landlords discovered their sexual orientation (see below).
According to one source, there are very few people in Azerbaijan who can talk openly about their sexual orientation. This mainly concerns transgender women who work in prostitution. Some of them give interviews to channels on YouTube. In general, individuals who are openly LGBTI work in prostitution or the service sector, mainly as stylists, make-up artists or hairdressers. People who are openly LGBTI are only seen in Baku. They can rent flats in the centre of the city. Medical care is accessible to persons who are openly LGBTI, although they may sometimes face insulting comments from doctors.
During the reporting period, the media in Azerbaijan sometimes sketched the image of LGBTI people as prostitutes or wrote only from a sensational point of view, without presenting an objective view. Politicians sometimes made homophobic statements. In addition, LGBTI were regularly threatened and attacked by fellow citizens, including family members.
6 The Netherlands Ministry for Foreign Affairs, ‘General Country of Origin Information Report for Azerbaijan’ (July 2020).
One source indicated that it is possible to seek protection from the authorities when LGBTI people experience serious problems on the part of fellow citizens, but that LGBTI people usually do not dare to ask for this protection for fear of revenge from these fellow citizens and because of the social stigma. There are no shelters specifically for LGBTI in Azerbaijan, but LGBTI people are sometimes accepted in shelters. Many young LGBTI people run away from home or are evicted by their parents. They then go to Baku because LGBTI people can live there more easily than in rural areas where there are more social and cultural restrictions. For example, it is only in Baku that there are gay bars.
During the reporting period, the NGO Gender & Development championed the LGBTI community, among others. Among other things, this NGO was involved in organising an LGBTI film festival. In addition, Nefes was active in Azerbaijan during the reporting period. Nefes was not officially registered in Azerbaijan. Nefes’s founder was resident in Germany, but members of Nefes were active in Azerbaijan. Among other things, Nefes conducted research and awareness campaigns and provided online legal advice. Nefes was also active on social media. AZAD LGBT was also active during the reporting period. On 22 January 2014, the chairman of this organisation, Isa Şakhmarli, committed suicide by hanging himself with a rainbow flag. In his farewell note, he said that he was protesting against the political and social pressure on the LGBTI community in Azerbaijan. AZAD LGBT organised film screenings in Baku, among others. In addition, Minority Azerbaijan has published an online magazine from the United States since December 2015.
The authorities did not pursue an active prosecution policy against the LGBTI community during the reporting period. The authorities tolerated LGBTI people as long as they were not too visible to the outside world. However, there were reports of violence and extortion against homosexuals by the police. For example, during the reporting period, police officers contacted gay men through dating sites or gay meeting places and subsequently attempted to extort money from them.
The applicant’s evidence as to his bisexuality was limited and inconsistent with what he had told the delegate, which was that he had only shared kisses with a man by the name of [Mr E] while in [Country 1] in 2019, and that he had not attended any LGBTI events. The delegate found that “his statements on bisexuality are speculative and even tied to his future status in Australia.” For the Tribunal hearing, the applicant produced a letter from[Mr E], a [age]-year-old US citizen resident in [Country 1]. Mr [E]’s letter states that he met the applicant in 2016 and that they “have had a lot of beautiful times together” on a casual basis. He states that the applicant told him that he had had some “casual connections with males” before they met. He states that the applicant told him that he had concealed his sexuality while in Azerbaijan out of fear of his father’s reaction and community attitudes. Mr [E] states that their sexual relationship ceased in 2017 when the applicant commenced his relationship with Ms [A]. When the Tribunal queried the applicant about the inconsistencies, the applicant said that he had not expected the issue to arise and had not sought to include it among his claims. However, the inconsistencies as to the relevant dates are difficult to reconcile.
Having considered [Mr E]’s letter in totality I am not inclined to give it significant weight. As noted in paragraph 104 above, the English language expression is surprisingly stilted (for example, he claims “We all together enjoyed having parties or going to the pub on weekends and were meeting with each other in person”) for a US national. There was no material accompanying the letter to provide any confidence that Mr [E] is its author and the applicant submitted no photographs or other evidence as to their friendship. Ms [A]’s account of the relationship in her letter was very brief and she describes meeting Mr [E] on only a couple of occasions, in contrast to the extensive social interactions Mr [E] described.
The applicant submitted some photographs said to be from his Instagram account, which he claims show him at a Pride parade. However, with the exception of one photograph
described as an LGBTI parade in [Country 3] from August 2014 with which the applicant is not clearly associated, the photographs are not identifiably of an LGBTI event. I am not inclined to give them any weight.
Considering all the evidence presented in relation to this claim, I do consider it sufficient to satisfy me that the applicant is bisexual, or that he faces the risk of harm for that reason should he return to Azerbaijan.
Compulsory military service
The Constitution of the Republic of Azerbaijan7 provides the following directives regarding service in the armed forces:
Article 76. Defence of Homeland.
I. Defence of Homeland shall be the duty of every citizen. Citizens shall serve in the Armed Forces as prescribed by Law.
II. If military service is contrary to a person’s convictions, then, in cases prescribed by law, it may be permissible to replace regular military service with alternative service.
Sources indicate that Azerbaijan requires men between the ages 18 to 35 to perform military service.8 Sources indicate that the duration of compulsory military service is 18 months, and 12 months for university graduates.9
The European Bureau for Conscientious Objection (EBCO) indicates that conscription is enforced in Azerbaijan.10 Sources report that conscription orders were issued in September 2014 and March 2016.11
According to the United States Department of State’s 2020 Human Rights Report on Azerbaijan,12 the law requires men of draft age to register with military authorities before travelling abroad.
The Criminal Code of the Republic of Azerbaijan (2000) states the following regarding the evasion of military service:
Article 328. Default of order
328.1 Obvious refusal of execution by subordinate of the order given by the chief in order according to law, as well as deliberate default of the order in other form, causing essential harm to interests of military service – is punished by restriction on military service for the term up to two years, or by maintenance to disciplinary military unit for the term up to two years, or imprisonment for the term up to two years.
Article 335. Evasion from military service by causing harm to health or in different way
7 The Constitution of the Republic of Azerbaijan (1995)
< Radio Free Europe, ‘Azerbaijan to Reform Military Conscription’ (21 February 2012); United States Central Intelligence Agency, ‘Azerbaijan: The World Factbook’ (16 May 2016).
9 EBCO, ‘About EBCO’ (no date available).
10 EBCO, ‘Conscientious Objection to Military Service in Europe 2015’ (October 2015).
11 Report News Agency, ‘Azerbaijan Starts Next Conscription’ (1 April 2016).12 United States Department of State, ‘2020 Human Rights Report: Azerbaijan” (30 March 2021) at p 34.
335.1 Evasion of a military man from military service by causing any harm to health or feigned illness, forgery of documents, or other deceit, as well as refusal from implementing duties of military service – is punishable by restriction on military service for the term up to one year or maintenance to disciplinary military unit for the term up to two years.
The Netherlands Ministry for Foreign Affairs’ latest country information report on Azerbaijan13 reports the following:
Conscientious objection and desertion, as well as other crimes against the army of Azerbaijan, are criminal offences. Conscientious objectors can face criminal prosecution, but not in all cases. During the reporting period, a number of cases were reported of Jehovah's Witnesses who were fined or sentenced to prison terms for their conscientious objection.
Article 76 (2) of the Constitution provides for alternative conscription that must be regulated by law. That was also one of the commitments made by Azerbaijan in 2001 when it joined the Council of Europe. However, no alternative military service law was passed during the reporting period, making alternative military service impossible in practice.
Deserters can face criminal charges in the military. According to a source, the military did not usually refer military personnel who deserted for the first time to the Attorney General, but internally sentenced deserters to five to ten days of detention at a military base. Another source said that 66 people were prosecuted for desertion in 2019. According to this source, they were sentenced to prison terms of three to seven years. They had to spend this time in a military penal institution. They still had to do their military service after completing their sentence. According to the same source, it was possible for them to avoid prosecution by paying bribes.
There are no known cases of criminal prosecution for reasons of conscientious objection or desertion involving disproportionate or discriminatory punishment or execution of the sentence because of race, religion, nationality, membership of a particular social group or political conviction.
Military conscription applies to all male citizens of Azerbaijan between the ages of eighteen and 35 who are fit for military service. This also applies to men who reside outside Azerbaijan. According to Article 18 of the Military Service Act, men who have reached the age of 35 can no longer be called up.
According to Article 18 of the Military Service Act a temporary deferral of military service can be granted. According to Article 22 of the Military Service Act, conscripts are temporarily not available for call-up when they are imprisoned. During the reporting period, authorities put pressure on activists by calling them up for military service despite an earlier deferral that was granted on medical grounds.
130.According to Article 23.1 of the Military Service Act, citizens with a doctoral degree are exempt from active military service in peacetime. According to Article 23.2, conscripts who are not fit for active military service in peacetime due to a medical condition and are less suitable for service in wartime or are unsuitable for military service in both peacetime and wartime are also exempt. In that case, after the medical examination by the SSMC, these people receive their military booklet in which this is registered. They do not have to hand in their national identity card, passport and/or driving licence in exchange for the military booklet. According to Article 23.3, conscripts who have not served up to the age of 35 are also exempt. Furthermore, according to Article 23.4, conscripts who have been allocated alternative military service are exempt. However, alternative military service is not possible in practice. Finally, according to Article 23.5, citizens who have been naturalised and have already taken part in military service in the country of which they were previously a citizen are also exempt.
13 The Netherlands Ministry for Foreign Affairs, ‘General Country of Origin Information Report for Azerbaijan’ (July 2020).
The applicant has submitted two ‘call-up’ documents, requiring him to present to the State Service for Mobilization and Military Service Conscription in [City 1]on 1 October 2021 and 20 April 2022. He claims that his failure to attend will render him liable to punishment as a draft evader or a deserter.
The applicant has submitted that he became eligible for service in January 2009, but was able to defer his service because he was undertaking tertiary studies. He again became eligible for services following his graduation from [Country 1]University in July 2017. He submits that he, therefore, has missed every seasonal call-up since October 2017.
In his submissions to the Tribunal dated 22 February 2022, he claimed:
While I was protesting on social media, Police visited my apartment and looked for me in my parents’ home. One of the reasons for visiting the Police provided that dues due to compulsory military service. They have warned my parents to delete the [social media] publication or other vices with which I will have severe problems.
In Australian law, enforcement of laws providing for compulsory military service, and for punishment for desertion or avoidance of such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention.14 This is primarily because it lacks the necessary selective quality.15 Without evidence of selectivity in its enforcement, conscription will generally amount to no more than a non-discriminatory law of general application. What must be demonstrated is that the punishment feared be imposed discriminatorily for a Convention reason, such as religion or political opinion, or membership of a particular social group such as ‘conscientious objectors’
The mere holding of a political opinion or membership of a particular social group by an applicant facing the prospect of harm (including serious harm) is not sufficient to bring that person within the Convention definition. The Courts have held that liability for conscription - even of conscientious objectors - will not of itself found a Convention claim. In Aksahin v MIMA, French J held:
The [High] Court expressly approved the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted (par 34). The accident that the particular political or ethnic sympathies of a person may cause him or her to disobey a law of general application, does not render the sanction for non-compliance persecution for a Convention reason.16
In other words, it is not sufficient that there be a nexus between feared persecution and a Convention ground, such as political opinion, if there is no relevant ‘motivation’ on the part of the alleged persecutors.
Accordingly, while I accept that the applicant holds political views opinions that may bring him to the adverse attention of the regime, and has genuine conscientious objections to Azerbaijan’s use of armed force against Armenia (and even accepting that these amount to the concomitant membership of particular social groups so defined), I cannot find that his being subject to military service, including the consequences of failing to respond to call-ups, amounts to persecution for a Convention reason.
14 See e.g. Mijoljevic v MIMA [1999] FCA 834 at [23], referring to Murillo-Nunez v MIEA (1995) 63
FCR 150; Timic v MIMA [1998] FCA 1750..
15 See e.g. Trpeski v MIMA [2000] FCA 841 at [27]; and Aksahin v MIMA [2000] FCA 1570.
16 Aksahin (supra) at [25] referring to Chen Shi Hai v MIMA (2000) 201 CLR 293.
Forced marriage
There is no country information the Tribunal has been able to locate regarding forced marriage for men or LGBTI men in Azerbaijan.
Rejection or ostracism by one’s own family would not of itself usually constitute persecution. In MMM v MIMA the applicant claimed that his family would disown him if they discovered his homosexuality. The Court held that such treatment could not be regarded as persecution within the meaning of the Convention as it is a purely private matter, and the general standards of civilised countries do not suggest that adults not under a disability have a right to protection when, for private reasons, their families reject them:
Persecution for the purposes of the Convention connotes some official approbation of the feared conduct, or at least official failure or inability to do something about it, when the general standards of civilised countries would entitle the putative refugee to the protection of the State … There is nothing in such general standards to suggest that adults not under a disability have such an entitlement when, for private reasons, their families reject them.17
Clearly, a family’s ‘private reasons’ in a ‘purely private matter’ may well relate to one or more of the Convention grounds. The point is that familial rejection, for any reason, is not the kind of detriment against which the state can be expected to provide protection. As Madgwick J observed, it is unlikely that any state would accept the responsibility of affording any person in the applicant's shoes either civil redress against his family or other amelioration of such a personal rift.18
I do not consider that the applicant genuinely fears violence from his father should he fail to agree to an arranged marriage. His father is now in his mid-sixties while the applicant is young and fit. His own evidence, and that of his mother, is that his family seeks only a suitable match and that the parents are most concerned for his happiness.
Unemployment
The United States Department of State’s 2020 Human Rights Report on Azerbaijan19 reports the following on access to employment:
The law prohibits discrimination with respect to employment and occupation, but the government did not always enforce the law effectively. Legal penalties for discrimination in employment existed under various articles and laws but were patchwork in nature and not commensurate with those under other laws related to civil rights. The law excludes women from 678 occupations in 38 industries that are framed as inherently dangerous jobs. Many of these positions were higher ranked and better paid than positions that women were permitted to occupy in the same industries.
Employers generally hesitated to hire persons with disabilities, and workplace access was limited. Discrimination in employment and occupation also occurred with respect to sexual orientation. LGBTI individuals reported employers found other reasons to dismiss them, because they could not legally dismiss someone because of their sexual orientation. Women were underrepresented in high-level jobs, including top business positions. Traditional practices limited women’s access to economic opportunities in rural areas. According to the
17 MMM v MIMA (1998) 90 FCR 324 at 327 referring to Applicant A v MIMA (1997) 190 CLR 225 per Brennan CJ. The Court’s reasoning is broadly consistent with the discussion of ‘protection’ and ‘persecution’ in the joint judgment of Gleeson CJ with Hayne and Heydon JJ in MIMA v Respondents S152/2003 (2004) 222 CLR 1.
18 MMM v MIMA (1998) 90 FCR 324 at 327.
19 United States Department of State, ‘2020 Human Rights Report: Azerbaijan’ (30 March 2021).
State Statistics Committee, in 2019 the average monthly salary for women was 58 percent of the average monthly salary for men. According to gender experts, gender-based harassment in the workplace was a problem.
The Tribunal considers that the employment situation in Azerbaijan, which is a country very heavily reliant on petroleum exports, will be subject to fluctuations. His evidence was that it was impossible to obtain employment using his bachelor’s degree in [course deleted]following graduation, unless he paid bribes to secure patronage. He gave evidence that his mother, despite being well-qualified and holding a responsible position, was living below the poverty line, earning only the equivalent of about AUD$250 per month and that his aunt lives on a pension of about AUD$120 per month. The applicant tendered remittance receipts showing that he had making regular payments to his mother and aunt.
The Tribunal considers that the economic and employment situation is a matter that affects the population of Azerbaijan generally and does not amount to persecution within the meaning of the Act. Further, the Tribunal considers that the applicant’s last exposure to the labour market for his specialist skills was between 2012 and 2014, during which time he was able to accumulate the funds to support his further education in Poland. There is no evidence before the Tribunal to support a claim that he would be unable to access the necessities of life by the operation of any discriminatory policy or otherwise.
Treatment of returnees and conditions for returnees
The Netherlands Ministry for Foreign Affairs’ latest country information report on Azerbaijan20 reports the following:
Azerbaijan has no legislation that criminalises an application for asylum abroad by Azerbaijani citizens.
There are known cases in which migrants who were forced to return had problems with the authorities on their arrival. These cases involved journalists, bloggers and activists (see sections 3.1.1 and 3.2.1).
The applicant gave evidence to the Tribunal that local police in [City 1] were aware of his having made a protection claim in Australia. This is difficult to accept unless he has in some way publicised his application on social media, or one of his friends or relatives has informed the authorities. In any event, there is no country information to support a claim that having made this application exposes him to a risk of harm for a Convention reason.
While I do not accept that that his claim amounts to a well-founded fear of harm, it is considered as part of the applicant’s cumulative claims.
Cumulative claims
The applicant’s representatives brought to my attention the decision of SM Dragovic in matter number 1713047. In that matter, SM Dragovic, while not accepting the applicant’s claims to have converted to Christianity, not his claims to have a political profile, accepted that the applicant’s generally non-conformist personal, together with the fact that he would face detention for evasion of military service, gave rise to a real chance or a real risk of being harmed. I consider this decision to be of some assistance in this matter.
Having regard to the applicant’s cumulative circumstances, I am satisfied that it is likely that that he will be identified upon arrival in Azerbaijan as having evaded military service for
20 The Netherlands Ministry for Foreign Affairs, ‘General Country of Origin Information Report for Azerbaijan’ (July 2020).
some years and possibly as the author of the politically dissentient social media content referred to above. While I cannot find with certainty that he will face a military court, I am satisfied that that is a possibility, and that it likely that he will be required to complete a term of military service, whether in a punitive unit or as part of the general intake. I am satisfied that, given that I have found his claims to have been beaten by reason of his political opinion to be plausible, that he will be subjected to similar treatment (whether at the hands of military authorities or other servicemen) and that he faces a real risk or a real chance of being harmed.
I coming to this conclusion, I have rejected a number of the applicant’s additional claims. As I indicated to the applicant at the hearing, the nature of some of his claims and evidence came perilously close to affecting my assessment of his credit overall. In the absence of his social media posts (which were not themselves free of doubt – see paragraph 111), it is possible that his claims as to his political opinion, which are the linchpin of this decision, would not have been accepted.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is a real chance that the applicant will suffer persecution as a consequence of his real or imputed political opinion, together with his liability for punishment for evasion of military service if he returns to Azerbaijan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant has a well- founded fear of persecution if he returns to Azerbaijan. Accordingly, the Tribunal finds that he satisfies the criterion in s.36(2)(a) of the Act.
Having found that the applicant satisfies the criterion in s.36(2)(a), it is not necessary to consider whether the complementary protection criteria are satisfied.
Overall conclusion:
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
James Lambie Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a
well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of
serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
…
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Remedies
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