1606673 (Refugee)

[2019] AATA 3759

1606673 (Refugee) [2019] AATA 3759 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606673

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Luke Hardy

DATE:10 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 10 April 2019 at 2:15pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – membership of humanitarian group – claimed membership of banned political group – overseas travel – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 92R
Migration Regulations (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

Sun v MIBP [2016] FCAFC 52

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, [Applicant 1] and his family, are all citizens of Pakistan. [Applicant 1] first arrived in Australia [in] November 2013 on a [temporary] visa. He departed [later in] November 2013. He re-entered Australia with his family [in] July 2014 on [temporary] visas valid to 24 October 2014. [Applicant 1] lodged a protection visa application on 26 August 2014. He added his family to the protection visa application: he was the main applicant and the rest of his family were included as dependent applicants. This means that the success of their applications depended on the outcome of [Applicant 1]’s claims.

3. The delegate refused to grant the visas on 15 April 2016 and the applicants then sought review by this Tribunal.

4. The applicants appeared before the Tribunal on 5 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Applicant 1]’s friend, Mr [A].

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Baloch-English medium.

6. At the beginning of the first hearing, I raised with the applicants the existence of a “Non-disclosure” certificate in their Department of Home Affairs (DHA) file. The certificate purports to order that certain documents in the DHA file may not be disclosed to any person, the issue being, on the face of it, that if I saw them and relied on them in a negative decision without disclosing them to the applicants, I would fall into jurisdictional error. However, in this case, the certificate (at f.162) states that it covers a finite number of itemised documents which it describes as internal working documents, which means that the non-disclosure certificate is an invalid one[1]. All but one of the listed documents deal with internal operations undertaken to confirm the identities of the applicants, an issue which is not under any doubt in this review; the other is a checklist stating that there are no non-disclosable documents in the DHA file. That earlier checklist turns out to have been more correct and valid than the list provided in the subsequent certificate.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   [1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98

   The issues

7. The main issue in this case is whether, on accepted facts, [Applicant 1] and his family are entitled to protection in Australia as refugees or, if not, on complementary protection grounds.

8. For the following reasons, I have concluded that the decision under review should be affirmed.

   Claims to the DHA

9. According to material submitted in and with his protection visa application, [Applicant 1] was born in [year]. He is a resident of Karachi. He worked in his family’s [business] from [year] to 2014 apparently taking it over after his father’s death in 1999. His wife [was] born in [year]. [Applicant 1] evidently lived at the same address in Karachi from the time of his birth until the time of his last travel to Australia. He was, however, a frequent traveller to the EU, including [Country 1], [Country 2] and [Country 3] between 2006 and 2013. He evidently departed and re-entered Pakistan legally on every occasion. He visited [Country 4] [in] November 2013, departing and re-entering Pakistan legally at the time. He claimed he came to Australia for the sake of his safety in November 2013. He evidently departed Pakistan legally when he came here. He did not seek protection in Australia during his visit, which ended less than two weeks after his arrival. He re-entered Pakistan legally. He has never evidently sought asylum in the EU either. He claimed he travelled again to Australia in July 2014 for the sake of his safety, and again, he departed Pakistan legally, this time with his family.

10. In his protection visa application form, [Applicant 1] claimed that he had been a member of the nationalist Baloch Republican Party (BRP) since its foundation in 2006. He said the BRP raised human rights issues of concern to Baloch people including the issue of missing persons. He claimed he is also a member of the Pakistan NGO Voice for Baloch Missing Persons (VBMP) via its international chapter. He claimed that for reasons of this political affiliation he received “treats” (threats) from Pakistani authorities and intelligence agencies like ISI. He said many pro-Baloch politicians and activists have been killed or gone missing. He said he thus had no option but to flee Pakistan.

11. [Applicant 1] claimed he supported and organised a “long march” from Quetta (in Balochistan) to Islamabad via Karachi to raise awareness of Baloch concerns.

12. Asked in his protection visa application form if he had experienced harm in Pakistan, [Applicant 1], who had assistance completing his protection visa application form, said that Pakistan’s intelligence agency had been threatening members of the BRP. He did not provide any detail about himself.

13. Asked what he feared might happen to him in the event of return to Pakistan, [Applicant 1] said that if a person talks or protests about the alleged abduction of Baloch nationalists, the authorities will pursue that person. He said a similar thing would happen to his family if they returns to Pakistan. He said there are no authorities that can protect him as it is the state apparatus that would harm him.

14. [Applicant 1] submitted a plastic credit card-style card purporting to be a BRP membership card, issued in [Country 1]. It was purportedly issued [in] September 2014, which was after [Applicant 1]’s second arrival in Australia and also after the date on which he lodged his protection visa application. The card features a portrait passport-style photograph of [Applicant 1] and says he is a member of the BRP’s Australian chapter. The card is not evidence of affiliation with the BRP in Pakistan since 2006. It is accompanied by two identical signed letters from the BRP’s [Country 1] chapter president who describes [Applicant 1] as an active member of the BRP who joined the party in Karachi, but does not say when he joined. The earliest date in the body of the letter is July 2014 when, according to the author, [Applicant 1] fled Pakistan fearing persecution. The letter asserts that [Applicant 1]’s family home was raided by Pakistan authorities, but provides no details as to when, or as to how the author learned of the raid. The rest of the letters, both dated [October] 2014, briefly describe the concerns and activities of the BRP.

15. [Applicant 1] submitted to DHA some photographs showing him attending public outdoor and indoor rallies, some featuring him holding placards seeking release of abducted Baloch activists. None of the photographs suggest that the rallies met with opposition, resistance or repression by the authorities. The slogans on the placards displayed by [Applicant 1] and others at these demonstrations align with the objectives of the VBMP, which is not banned in Pakistan: they seek information regarding the circumstances of people who have been arrested or abducted in the course of the armed insurrection in Balochistan, for the sake of grieving families; none of them espouse the separatist objectives of the banned BRP or outlawed Baloch Liberation Army (BLA). The rallies are evidently quite large, involving tens to hundreds of demonstrators.

16. [Applicant 1] also submitted a number of Pakistani newspapers, though without translations. He later told me they contain photographs of him attending Baloch-focused rallies in Karachi.

    Evidence to the delegate

17. For the purposes of this review, [Applicant 1] submitted to the Tribunal a copy of the delegate’s decision record which contains an uncontested summary of [Applicant 1]’s oral evidence and discussion of issues the delegate considered critical to his or her decision.

18. [Applicant 1] told the delegate his grandparents used to live in Balochistan. He claimed his father owned the [business] in which he worked since [year].  He claimed that the [products] came mainly from Balochistan. He claimed ISI closed his father’s business in 2015 after discovering that he, [Applicant 1], had left Pakistan (in fact for the second time). He said the family retains the land on which the business stood and has left it unoccupied.

19. [Applicant 1] told the delegate that he had been a member of the BRP’s predecessor party the Jamhoori Watan Party prior to 2006. He told the delegate that the BRP seeks its own parliament and independence from Pakistan.

20. [Applicant 1] claimed he organised a “telephone tree” in which SMSs were apparently sent by BRP members to multiple recipients. He said he also organised brochures and pamphlets. He said he could not remember how many demonstrations he had organised. He said Baloch people always demonstrate as soon as any relevant event occurs.

21. [Applicant 1] said he did not have a formal role or title in the BRP. He said he just assisted the party. He said he worked one day every two months assisting the party

22. [Applicant 1] told the delegate that he participated in the 2013 Quetta-Islamabad “long march”. He said he did not march, but assisted the participants when they passed through Karachi. The delegate located independent country information reporting that this march started in Quetta on 27 October 2013 and reached Karachi on 23 November 2013[2]. The delegate disbelieved that [Applicant 1] assisted the marchers in Karachi because he was in [Country 4] [in] November 2013. The delegate nevertheless noted that the march did not resume towards Islamabad until mid-December 2013[3]. [Applicant 1], meanwhile, presented a photograph to the DHA showing that he was present with the marchers at some point. I am satisfied the photograph is genuine.

    [2] “Karachi: Through Transitions and Transformations,” Centre for International and Strategic Analysis, 1 March 2014,

    [3] Ibid.

23. The delegate asked [Applicant 1] about the threats he claimed to have received. He said someone called him on his mobile telephone and told him to quit the BRP or be killed. He said the calls began in December 2013. He said there were eight to ten such calls. He said that he and his family spent one month in January 2014 moving from place to place, though still in Karachi, due to fear arising from the calls. He did not mention this absence from home in his protection visa application form and, in any event, he claims to have continued residing at home after January 2014.

24. Asked about his travel history, [Applicant 1] told the delegate he undertook tourism in order to help abducted people’s family members in various countries. He said he also visited BRP members abroad. He said he first met [Country 1] chapter president in 2013 and then said they had met during his earlier visits to [Country 2].

    Independent country information

25. I have had regard to this brief background from DFAT[4] regarding the state response in Pakistan to Baloch separatism, as espoused by the banned BRP:

    Security Operations

    2.75  The Pakistan armed forces … have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups …

    Armed Groups

    2.83  While terrorist attacks declined in 2017 and 2018, armed groups remain a threat to Pakistan’s domestic security and Pakistan-based terrorist groups remain a threat to Pakistan's neighbours, particularly India. Armed groups can be generally categorised into four main groups: anti-state militant groups such as the TTP, sectarian militant groups, anti-Indian and Afghan-focused groups, and secular nationalist groups, such as the Baloch militants. However, the variety of forms of extremism in Pakistan feed off each other and the dividing lines between the various groups is often blurred.

    [4] DFAT Country Information Report: Pakistan, 20 February 2019

26. Whereas the BLA and BRP are both banned groups in Pakistan, VBMP and IVBMP are evidently not banned, and it is evidently not against the law to demonstrate on behalf of people declared missing in the course of the conflict, with the IVBMP operating openly in co-operation with UN and other Human Rights agencies in Balochistan and nearby Karachi:

    … The IVBMP has coordinators in every district in Balochistan, who report and record every abduction, torture and murder. They then send the data to human rights groups, media and the United Nations.

    Although the abductions started in the 1970s, Mama Qadeer Baloch says, “Things got worse in 2001, when General Pervez Musharraf came to power. He started a much more speedier policy against Baloch activists and also martyred a respected and beloved Baloch leader, Nawab Akbar Bugti.” Qadeer says that abductions, hatred and political murders all increased around this time.

    Later, under former President Asif Ali Zardari, bloodied, mutilated bodies were dumped in different parts of Balochistan, claims Qadeer.

    He recalls that during Zardari’s term, then Interior Minister Rehman Malik visited Balochistan and warned of a crackdown. Qadeer continues, “Frontier Corps (FC) uniformed men, come, pick up our sons. And the ISI and MI also come in civil clothing, raid our homes, pick up our boys from colleges, schools and neighbourhood. Whenever they fear our students will fight back, they bring in the FC’s uniformed forces to control the situation. They have treated our educated lot the most horribly. This includes, doctors, thinkers, lawyers, professors, and especially journalists.” …

    Some families reached by The Diplomat gave horrifying descriptions of the torture their family members suffered. Some bodies were minus their heart, lungs and intestines. Some had had their eyeballs removed. In one case, the body of Marri Baloch was reportedly given to medical students for training. The IVBMP has a photographic record of the horrors.

    “They do this to scare us,” says Aafia Baloch, mother of one of the abducted Baloch activists.

    “These bodies have made the mothers stronger. They sing songs of revolution when they see the dead now,” she says.

    Adds Qadeer, “I did not cry when I saw my son’s body. Of course my son was dear to me. But I will not let this hurt me or diminish the struggle of the people of Balochistan.”

    “We are in touch with UNO. We always update them with each abduction and murder, we email them all the bio data,” says one Baloch worker with the IVBMP who asks not to be named. “We will publish all the data with specification of their status as killed, or tortured and abducted. We will give away booklets with all the bio data of each abductee and murder.”

    Farzana Majeed Baloch, another leading member of VMBP, is the sister of student leader Zakir Majeed Baloch, who was abducted on June 8, 2009 by intelligence agencies from Mastung, in front of two eyewitnesses. Zakir was a Baloch political activist. Since then his sister has been protesting at the cost of her own safety. She is also taking part in the long march.

    “It was difficult to protect ourselves since we started IVBMP, even though we are peaceful in our voice. [The 2014] long march was also tremendously challenging. The whole way was extremely difficult for many families who have walked with us,” Farzana told The Diplomat.

    She calls on the government of Pakistan to stop these abductions, including those of political workers. “You have to take the political activists to court. You can’t simply pick them up and abuse them in torture cells. It happens around the world. They deserve due process,” she tells The Diplomat. “This government tortured us for years and tortures the family of those who has gone missing. In these times of education and technology, when we have reached the moon, the Pakistan army, still believes in backward obsolete concept of slavery and torture.”

    Majeed insists that their protest is peaceful. The group has reached out all local and international human rights groups for support. “But the amount of attention we are getting from everyone, is right in front of you,” she adds, complaining about the lack of media coverage.

    “I urge the UN, not to stay silent. It is to protect people like us that the UN was formed,” says Farzana Majeed. “I don’t just speak about the Baloch, I speak for all humans and all people of Pakistan who are going through the torture from the army officers.” …[5]

    [5] “Balochistan’s Missing Persons,” The Diplomat, 6 January 2014,

27. The long march that began in Quetta in October 2013 continued into March 2014. It involved over thirty people who were families of disappeared persons from Balochistan.[6] The marchers were prohibited from demonstrating in Islamabad but they had not been prohibited from gathering and demonstrating in other cities along the way, including Karachi. Some participants such as the leader of the march reported having received threatening telephone calls from local police in Punjab but the marchers were apparently undaunted and ultimately not prevented from continuing to participate.[7] A car was reportedly set alight by a person or persons opposed to the march. Two marchers were slightly injured in an attack by the driver of a truck. There were no fatalities. Marchers were not arrested or abducted. Generally citizens of Pakistan are reported to have embraced the marchers as they passed.[8] The march was not evidently an initiative of the BRP or BLA, although the VBMP was evidently much involved in organising it.[9]

    [6] “Baloch missing persons: Long march participants arrive in Rawalpindi,” The Express Tribune, 27 February 2014,

    [7] “2,000 kilometers long march to highlight the issue of Baloch missing persons,” OpEd News, 1 March 2014,

    [8] “Baloch Long March: A New Chapter in Balo[c]h history,” The Balochistan Point, 1 March 2014,

    [9] “2,000 kilometers long march to highlight the issue of Baloch missing persons,” OpEd News, 1 March 2014, type="1">

28. Although VBMP is not banned in Pakistan, one of its leaders and three staff were arrested and detained in 2017:

    On Sunday, 11 June 2017, Pakistani security forces stormed the office of Mr Nasrullah Baloch, the head of Voice for Baloch Mission Persons (VBMP) in Quetta. The human rights activist and three of his colleagues were abducted without any reasons or proof that they had committed a crime. Over the last 8 years, Mr Baloch’s non-violent and democratic NGO has fought for the release of abducted Baloch people and shed a light on enforced disappearances among Baloch, raising awareness for this issue with the Pakistani government and the international community. This new case adds to the growing list of disappearances and assassinations of members of the Baloch minority in Pakistan.[10]

    [10] “Balochistan: Chairman of Baloch NGO Abducted by Pakistani Forces in Quetta,” UNPO, 15 June 2017,

    Evidence to the Tribunal

29. [Applicant 1] submitted a copy of a further letter from the BRP’s [Country 1] chapter president, this one dated [January] 2019, saying that [Applicant 1]’s role in the party in Karachi had been to raise awareness within the Baloch community about the Pakistani Army’s role in abductions of Baloch people. The author says that [Applicant 1] was under close observation because of his open activities. The author added that [Applicant 1]’s life would be in danger if he returns to Pakistan because pro-Balochistan activists’ activities are monitored by Pakistani agents abroad and in Pakistan.

30. [Applicant 1] submitted some reports of deaths of Baloch activists, mainly inside or near Balochistan. He submitted some media reports of a pro-Baloch conference in New Delhi in 2018 condemning “genocide” in Balochistan. He submitted an independent report of the July 2018 discovery of a mass grave believed to contain bodies of missing Baloch fighters and affiliates.

31. [Applicant 1] submitted a statement from a witness named [Mr A] in which the author discusses the human rights concerns of Baloch people.

32. [Applicant 1] brought photographs and printouts of social media postings featuring himself, his wife and children standing beside streets and outside shopping centres in Sydney holding the kinds of placards seen in [Applicant 1]’s photographs of the VBMP demonstrations in Karachi: the slogans on display espouse the cause of Baloch women and families of disappeared persons. Some of the “chat” accompanying these images indicates interest on the part of the BRP. There are also photographs of [Applicant 1] handing out flyers along shopping streets.

33. At the Tribunal hearing, [Applicant 1] said he has some family members in Karachi and then corrected that claim, saying that he has no close family members there. He said his father died in 1999 and his mother died in 1988.

34. I asked [Applicant 1] about his travel to Europe. He said he took his wife twice to [Country 3] where they went sightseeing and caught up with friends. He said some of these friends were Baloch people and amongst them, some were members of the BRP.

35. I asked [Applicant 1] how long he had been a member of the BRP and he said he joined in 2006. I asked him if he could provide any evidence of having been a member since 2006: his membership card, as noted, did not attest to membership prior to the time he applied for a protection visa in Australia. [Applicant 1] referred me to the BRP letters submitted in evidence, saying that they attest to his having been a BRP member since its existence. However, I read both letters again, and even read aloud where one of them referred to him directly, and neither letter discusses how long he has been with the BRP; rather they merely describe him as a loyal and active member who cannot return to Pakistan for fear of being harmed.

36. [Applicant 1]’s BRP membership card has a membership code that appears to indicate that he joined or had his membership registered in “14”. Also, the issue date was [September] 2014. I put to [Applicant 1] that his card (and possibly his membership) had expired: it did so in 2017. In response he first said that he had applied for a new one and was waiting for it to arrive and then he changed this response, saying that he had not applied for a new card yet but would surely be sent one if he were to apply. This was the second occasion in the hearing on which [Applicant 1] changed his response to a question. He appeared to leave the matter of re-applying or re-joining a speculative one.

37. I asked [Applicant 1] what he does in Australia with the BRP and he referred me to the photographs he had taken with his family and the placards. Essentially he said that from time to time, when there’s an anniversary or event in Pakistan, he and his family make presentations in public like the ones seen in the photographs. Looking at these images, I noted that the applicants did not appear to be accompanied by anyone else. What they were doing appeared similar to the larger demonstrations held in Karachi. I put to [Applicant 1] that no affiliation with the BRP or BLA was apparent in the photographs (although they seemed similar I content to photographs of him in what appeared to be VBMP gatherings in Karachi). In response, [Applicant 1] asserted that these activities with his wife and children were indeed BRP activities. He directed me to the social media pages where, evidently, the local BRP [reposted] his photographs. I have taken into account that the BRP [reposted] the photographs, but the evidence before me is that the applicants undertook to demonstrate on those occasions in Sydney on their own initiative.

38. Since this was evidence of engagement in potentially relevant conduct in Australia, I considered whether it might be appropriate to disregard the conduct having regard to s.92R(3) of the Act, as it stood at the time of the applicants’ protection visa application:

    For the purposes of an application of this Act and the regulations to a particular person:

    (a)        in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

    disregard any conduct engaged in by the person in Australia unless:

    (b)        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 within the meaning of the Refugees Convention as amended by the Refugees Protocol.

39. In the course of my consideration, I took into account the evidence of [Applicant 1] being an ethnic Baloch who spoke Balochi at the Tribunal hearing. I also took into consideration the fact that he has demonstrated with others on evidently different occasions out of apparent concern for disappeared Baloch persons in the past back in Pakistan; I consider it reasonable and plausible that an ethnic Baloch in Karachi would do so. I have also considered that it is very likely that were he to ask or tell his family to demonstrate with him on the streets of Sydney they would conceivably obey him in good faith. Whereas there may be some element of trying to strengthen the present protection visa application, I am satisfied that the applicants have engaged in this conduct in Australia consistent with [Applicant 1]’s long-standing concern for missing persons in Balochistan, which means that their conduct in Australia, is at least in part, conduct other than for the purpose of strengthening their refugee claims.

40. I am of the same view with regard to [Applicant 1]’s having obtained evidence of membership of the BRP in September 2014: even though the evidence of his having been a member of the BRP prior to 2014 is unsupported, and even though he appears only to have engaged in a few activities before a camera in Sydney locations with his family, the evidence of his affiliation with BRP in 2014 is not inconsistent with his sympathies towards missing persons and their families in Balochistan.

41. I asked [Applicant 1] to tell me how long he had been participating in demonstrations and other campaigns in Pakistan. He said he had been doing so since 2006. He said that the demonstrations he attended in support of Baloch “families of the disappeared” usually took place in front of the Karachi Press Club, to encourage, I infer, optimal media coverage. I asked [Applicant 1] how long he had believed that the ISI and other security agencies had been interested in him, and he said the interest had been “continual” particularly in 2011, 2012, and 2013, the year he started to receive threats over the telephone. He said he became active in campaigns and demonstrations in 2006 and became much more active in 2008, 2009 and 2010. He said that at the time some “members” were taken away by ISI or other agencies; I presume he was referring to people who were somehow members of the banned BRP. I put to [Applicant 1], by 2010 at the latest, he would have been aware of ISI “disappearing” people, and he said that he was and that the circumstances caused him to be very careful and to avoid campaigning in public. He said he campaigned “not openly” and “under the table”; essentially he indicated that he modified his behaviour to avoid being persecuted.

42. However, seeming to contradict this claim, [Applicant 1] said that the photographs showing him demonstrating, in some cases in the front line, in public streets and spaces in Karachi were all taken between 2009 and 2013, up until the claimed threats came over the telephone. I put to [Applicant 1] that his activities depicted in the photographs did not appear consistent with his claim about having done things in secret to avoid being persecuted, a logical corollary being that he protested with VBMP and Baloch sympathisers for around eight years without ever having been arrested or kidnapped by authorities or their proxies.

43. Addressing this concern about apparent inconsistency, [Applicant 1] said that the authorities tended not to arrest people in front of the Karachi Press Club, preferring to come for people later. This position seemed broadly logical, assuming that the authorities might not want to attract such close attention to a crackdown on pro-Baloch demonstrators. However, the authorities in Pakistan have evidently not silenced media for reporting arrests and disappearances of pro-Baloch activists in Quetta, Sindh or Karachi. Meanwhile, as I put to [Applicant 1], evidently no-one came to arrest or abduct him after any of the demonstrations he attended between 2006 and 2013. This struck me as an issue relevant to the question about the applicants having staged, albeit on a much smaller scale a number of similarly-themed demonstrations in Sydney, to evident approval from the banned BRP-in-exile.

44. Addressing the concern I raised, [Applicant 1] said he used to change his residence to make it harder to be caught by the intelligence services. However, all the while, I note, [Applicant 1] evidently operated his family business from the same location over the eight or so years since 2006; he could easily have been located there. In addition, in his evidence to DHA he claimed not to have commenced sleeping in different houses until January 2014, so this did not help explain why the ISI. In fact, he evidently told the delegate that he only changed houses “for a month” starting in January 2014, which seemed to suggest that he lied back in his home for the rest of the months until he came to Australia the second time. When I raised this with him at the hearing, [Applicant 1] said that he had never said he had hid only “for a month”, but when I drew his attention to the decision record and its hitherto unchallenged content, he said there might have been a mistake. He did not provide any evidence to suggest how a “mistake” might have been made.

45. I asked [Applicant 1] why it would have taken ISI some eight years to contact him, and then only to warn him, if he had been a publicly active member of the banned BRP for around eight years. In response, he said ISI does not take everyone in one go. I asked him how he had gained this seemingly internal view of ISI’s methods, and he said he had inferred this from what he had seen ISI doing over the years. He said that anyone who stands up for Baloch independence will eventually be caught. I noted this, also noting that none of the demonstrations in which [Applicant 1] has participated, in Pakistan or Australia, appear to have called for an independent and sovereign Balochistan.

46. [Applicant 1]’s purportedly long-observed understanding of ISI’s methods led me to ask him why he did not seek asylum in Australia when he first visited here in 2013. In reply, he said he had not yet received any telephone threats. This response did not sit with his claim about having known ISI to be an agency that can abduct a person at any time away from the public eye. I put to [Applicant 1] that, according to his claims hitherto, he had been afraid of ISI abducting him long before he received the alleged threats in late 2013, and he said he had indeed long been aware that he might be abducted, but was not provoked to seek asylum until after he received the telephone threats.

47. I put to [Applicant 1] that it seemed illogical and self-defeating for ISI or any security apparatus to tip him off, as it were, by telephoning him: they had already located him, since they could call his telephone, and were now giving him cause to go into hiding making it harder for them to locate him in future. In reply, he said the threats were just meant to make him stop campaigning. Even so, I put to him, if he went into hiding after that, he might not necessarily have allayed suspicions about him, and action to try and arrest him might have intensified; however, he was never ever arrested or detained.

48. I put to [Applicant 1] that it appeared to have taken ISI an extremely long time to decide to warn him openly that it wanted him to quit the BRP, and he said that there were probably a lot of people ahead of him. I asked if that meant he had been considered a low priority and he said he could not guess how the ISI operates. He said a lot of people had been killed and abducted. He showed me a head-and-shoulders portrait of a deceased man who he said had been abducted when alive from his home in Karachi in May 2015. 

49. I asked [Applicant 1] for his views about fighting in the separatist struggle in Balochistan and he said he was “not that kind of person”. He said he preferred awareness-raising. I put to him that the awareness-raising in which he had been involved in here in Sydney and back in Pakistan is not illegal in Pakistan and he confirmed that it is not. He said that the ISI will nevertheless take a person away if it wants to do so.

50. I raised with [Applicant 1] his having been able to leave Pakistan over a dozen times since 2006 and having re-entered over and over without ever having been taken aside by any authorities. In particular, I put to him that ISI did not prevent him from leaving Pakistan in 2014. In response, [Applicant 1] said that he left Pakistan before the ISI had completed the process of putting his name on an exit control list (ECL). I asked him how long did the ISI need before a move to put his name on an ECL could be completed and he did not address the question directly: he said that only BRP leaders and other pro-Baloch leaders are placed on ECLs; not activists like him. He thus changed his evidence from a position wherein he had escaped an ECL because not enough months had passed for one to be put into effect, to one wherein he was not the type of person who would ever attract such a restriction.

51. I put to [Applicant 1] that it nevertheless appeared odd that that an agency that, he said, would have arrested him had he not gone into hiding, did not evidently proceed to have national ports alerted in some way. In response to this, [Applicant 1] said that while he had been mentally prepared to be arrested as he left with his family, he was just lucky. He said he had rehearsed having to tell his wife and children to continue to the gate lounge and board the aircraft without him. He said he had just been lucky.

52. The witness [Mr A] said he had never met [Applicant 1] in Pakistan. He said they had met at the house of a mutual friend. He said [Applicant 1] had given him some funds to buy books that an NGO with which he was affiliated delivered to school-age children in Balochistan. He corroborated [Applicant 1]’s evidence about mounting the small public demonstrations in Sydney that are seen in the photographs he presented at hearing.

53. I asked [Applicant 1] to talk about what had happened to his business. In evidence to the delegate he had reportedly said the business was “closed and sold” by ISI in July 2015, the land on which it stood now left idle. He said to me that he abandoned it as soon as he received the threats. He said his workers probably ran it until ISI closed it after he came here. His evidence about this business was vague, and seemed incongruously so given that it was his own business and the source of his family income for so long. In response to my concerns, he said that when he went into hiding, he could not think about anything very much as he was just trying to get out of Pakistan. 

    Findings in relation to s.36(2)(a) of the Act

54. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[11] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[12]

    [11] MIMA v Rajalingam (1999) 93 FCR 220.

    [12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

55. I accept that persons closely engaged in the struggle for Balochistan independence face a high risk of harm from Pakistan authorities. I accept that many have died in armed conflict and other confrontations with authorities. I accept that leaders closely associated by the authorities with the secession movement have been raided and detained. Whether people such as [Applicant 1] who sympathise with the plight of residents of Balochistan face a real chance of being persecuted is a separate question that must be assessed on its merits.

56. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13] It is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[14]

    [13] 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

    [14] Sun v MIBP [2016] FCAFC 52 at [69].

1. I accept that [Applicant 1] is an ethnic Baloch. I accept that he is a resident of Karachi. I accept that he ran his family’s [business] out of a stable location in Karachi up until 2014. He says he simply abandoned the business to his employees in January 2014, but his evidence to that effect is unimpressive and relies on inconsistent evidence about having gone into hiding either for a month or for several months. In concluding that [Applicant 1]’s evidence about having hid either for a month or several months is unreliable, I do not accept his vague suggestion that someone made a mistake during or in the course of reporting his protection visa interview.

2. I accept that [Applicant 1] affiliated with the “long marchers” in late 2013 when they arrived, rested and transited in Karachi. In making this finding, I give some weight to the photograph of him amongst marchers [in] the street. It was evidently a very popular event. I accept that he openly joined and carried pro-Baloch placards in demonstrations organised by the VBMP over a few years leading up to 2013 or 2014. I accept that he identified with principles opposing abduction, disappearance and torture of people in Balochistan. I find that the VBMP is not banned in Pakistan and I give eight to the evidence of its members and followers being able to demonstrate openly there, much of the evidence being manifested in photographs provided by [Applicant 1] himself. I note that some demonstrations have been sponsored by the Baloch Human Rights Organisation which I take also, on the evidence to be an openly operating NGO that is not banned in Pakistan. I do not accept on the evidence before me that the demonstrations attended by [Applicant 1], which were evidently narrowly focused on resolving the circumstances of disappeared Balochistan residents (albeit some of them alleged insurgents), were actually or imputedly organised by, or involved, the BRP or the BLA or any other outlawed group or entity in Pakistan. Clearly they are not demonstrations campaigning for Balochistan secession or sovereignty. I give very little weight to the fact that the marchers were prevented from remaining gathered en masse in public after they reached Islamabad. I give more weight to the fact that they were permitted to complete the march to the capital and face only a few incidents of unreasonable pressure along the way.

3. I do not accept that [Applicant 1]’s involvement in the demonstrations and campaigns described in his evidence is evidence of his claimed involvement in the banned BRP. Meanwhile, I give weight to the fact, acknowledged by [Applicant 1] himself, that all the demonstrations he attended were legal.

4. On the evidence before me, I find that [Applicant 1] has been disingenuous in suggesting that he avoided arrest or abduction by authorities in Pakistan by keeping a low profile in the demonstrations and hiding here and there after attending them. The latter claims is particularly deficient as it relies on inconsistent evidence, as discussed earlier.

5. I do accept that the ISI in Pakistan keeps an eye on the VBMP and the BHRO and their activities. However, I only give a little weight in this matter to evidence of VBMP leaders and their staff, and other prominent opponents of the government’s treatment of suspected insurgents having been subjected to oppressive behaviour, because [Applicant 1], by contrast, is evidently an occasional supporter who lives in Karachi with no specific role in in any organisation.

6. I give much weight to [Applicant 1] having been able to travel out of Pakistan and back into the country without ever having been impeded by any authorities. I do not accept his explanations as to how, in the claimed circumstances, he was able to avoid being questioned, interrogated or detained by authorities on these several occasions on which he travelled voluntarily out of and back into Pakistan.

7. I accept that [Applicant 1] joined the BRP Australian chapter in 2014. I find on the evidence that his membership lapsed in 2017. I find that he gave inconsistent evidence about having remained a member. I note that he would have to re-apply to continued being recognised as a member and that he has not done so. He only speculates that he might. Since he has not done so since 2017, I am not satisfied that he will. I do not accept that [Applicant 1] joined the banned BRP before he came to Australia, let alone as far back as 2006 in Pakistan. Accordingly, I do not accept he ever travelled on BRP business. I can accept that he met the BRP leader on one occasion in [Country 1] in 2013, as it is reasonable to accept that he caught up with people of his own language group in his travels, but I do not accept that they met on earlier occasions, let alone for political business. [Applicant 1] has claimed that his travel to countries in Europe since 2006 was all about networking with purportedly fellow BRP members, families of disappeared persons and VBMP members. While I accept that he occasionally caught up with fellow ethnic Balochs, and whilst I can accept that his some of his contacts abroad may be affiliated with the VBMP and BRP, I do not accept on the evidence before me that his travel was for political purposes and I find, on the evidence of his ease in leaving and re-entering Pakistan on so many occasions, that he has not been imputed by Pakistani authorities to have been involved in any sensitive political activity abroad.

8. On the evidence before me, I do not accept that [Applicant 1] received threatening telephone calls, let alone in connection with being a member of the BRP. As stated, I do not accept on the evidence before me that he was ever a member of the BRP in Pakistan. His claims about the ISI declaring itself to be concerned with him over the telephone, as presented at hearing, are implausible and not consistent with the ease with which he was able to leave Pakistan with his whole family in 2014. I find [Applicant 1] concocted the story about first receiving threatening telephone calls in late 2013 in an unsuccessful attempt to explain why he did not seek asylum in Australia in 2013 or in any other UN Convention signatory state before that.

9. I do not accept on the evidence before me that the ISI expropriated and sold Mr Baloch’s business. His vague evidence at the hearing about how he let it slip away after receiving threatening telephone calls was particularly unsatisfactory.

10. As to risk of harm arising from his and his family’s demonstration activities in Australia, I have accepted that there is a genuine element to these activities. However, I give them very little weight, notwithstanding that the BRP evidently have [expressed] approval of his family’s [social media] postings featuring their demonstrations in Sydney, for they mirror albeit on a very small scale the kinds of legal awareness-building activities in which [Applicant 1] engaged in larger groups in Pakistan without any credible evidence of backlash from the authorities there.

11. I am not satisfied on the evidence before me that [Applicant 1] faces a real chance of being persecuted in Pakistan for reasons of his associating with Baloch persons abroad, including in Australia with [Mr A] and others, or with the NGOs or other organisations of which they are affiliates or members.

12. I am not satisfied on the evidence before me that [Applicant 1] faces a real chance of being persecuted in Pakistan for his past membership of the BRP. I find that [Applicant 1] will not re-join the BRP either whilst abroad or, illegally, in Pakistan, not because he fears being persecuted but because, on the evidence of his actions to date, he is not interested I doing so.

13. Having considered the evidence in this matter in its entirety, I am not satisfied that [Applicant 1] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future, separately for reasons of his Baloch activities, origins in Balochistan or pro-Baloch political activities.

14. I make the same findings in relation to the other applicants, who chose not to appear before the Tribunal, notwithstanding that they participated in the small-scale demonstrations organised by [Applicant 1] and notwithstanding that photographs of them with him were [posted] soon afterwards.

15. For the reasons given above, I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore they do not satisfy the criterion set out in s.36(2)(a). . 

    Findings in relation to s.36(2)(aa) of the Act

16. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

17. A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

18. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

19. "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

20. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

21. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

22. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

23. Accepting that the applicants are citizens of Pakistan, I find that Pakistan is the “receiving country” in this case.

24. I find that the harm [Applicant 1] identifies in his claims appears to include “the death penalty”, “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.

25. [Applicant 1]’s claims to complementary protection are for the most part the same as his refugee status claims. Since his refugee claims failed due to lack of credibility and, on other grounds, due a failure to meet the “real chance” test, they can no more succeed as complementary protection claims.

26. I have considered also the fact that his young children have been outside of Pakistani society and culture for a large proportion of their lives, and that their education in Australia would be interrupted in the event of removal to Pakistan. However, I am not satisfied on the evidence of a real risk of harm rising to the level significant harm, let alone intended.

27. On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that the applicants will suffer significant harm. 

28. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

29. There is no suggestion that the applicants satisfy s.36(2) on the basis of being member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, they do not satisfy the criterion in s.36(2).

    DECISION

30. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

31. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

32. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

33. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

34. 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 a protection 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 the applicant 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’).

35. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.