1618450 (Refugee)

[2019] AATA 5837

1618450 (Refugee) [2019] AATA 5837 (28 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618450

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Sean Baker

DATE:28 June 2019

PLACE OF DECISION:  Melbourne

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 28 June 2019 at 4:06pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Baloch nationalist – Baloch Students Organization (BSO) – Baloch Nationalist Movement (BNM) – enforced disappearance – released after family members intervened – voluntarily returned to Pakistan – political activities in Australia – credibility witness – state as agent of persecution – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 438
Migration Regulations 1994 (Cth), Schedule 2

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 3 September 2014 and the delegate refused to grant the visa on 14 October 2016.

3. The applicant appeared before the Tribunal on 23 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Balochi and English languages. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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.

9. The issue in this case is whether there is a real chance the applicant will be persecuted on return to Pakistan and, if not, whether there is a real risk he will suffer significant harm on being returned to Pakistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Non-disclosable information

10. On the Department file is a certificate indicating that s.438(1)(b) applied to information on the Department file. I discussed this with the applicant at hearing and noted that in my view this information was covered by s.438(1)(b) because it affected the personal privacy of another person and the information was given with an expectation of confidentiality.

11. I did however discuss the gist of the information with the applicant.

    Claims and evidence

12. The applicant’s claims can be summarised as follows. He lived most recently in Quetta, Balochistan before coming to Australia in 2013. The majority of his family remain there. He identifies as of Baloch ethnicity and Muslim religion. He claims that he was an active member of the Baloch Students Organization (BSO) and Baloch Nationalist Movement (BNM) when he was in Pakistan. He claims he was involuntarily disappeared [in] 2009 by the authorities, tortured, beaten and interrogated. He was released after his family approached the authorities. He was threatened so his family sent him overseas to study. He returned to Pakistan in December 2013 but his brother was able to keep him safe. After he departed the ISI raided his house looking for him. The authorities attempted to kill his brother and make it look like a bank robbery. He has engaged in demonstrations and other political activities in Australia to raise awareness of the Baloch issue. He fears being abducted and killed if he returns to Pakistan.

13. The applicant provided to the Department a statement, Australian and Pakistan identity documents, an article published under his name in [Publication 1], January 2011, with three other copies of [Publication 1] in which he is listed as a correspondent, a letter from the Baloch National Movement foreign spokesperson, various educational documents, photos and reports. Further photos, a letter from [Mr B], [office holder] of the Baloch Republican party, a letter from the applicant using his alias [Alias 1], [of] the BNM Australia region calling for a protest in February 2016, a further notice of a protest dated [in] September 2016 and various reports and articles.

14. The delegate did not accept the applicant’s claims, finding that his responses were vague and limited in detail, found it highly unlikely the intelligence agencies would abduct and then release the applicant, that he had only written one article in [Publication 1]. The delegate accepted the political activities of the applicant in Australia but found that as he had not been involved in militant activities, the applicant did not have a risk profile of any significance, found he did not depart Pakistan immediately, delayed seeking asylum and voluntarily returned to Pakistan. The delegate found the applicant did not have a genuine subjective fear of being harmed in Pakistan.

15. To the Tribunal the applicant provided a copy of the delegate’s decision. He also provided a statement addressing the delegate’s decision and a further copy of [Publication 1], January 2015, noting that the applicant is listed as a correspondent, a proforma of abducted person with the applicant – letter to interior ministry of Pakistan, photos of the applicant protesting in Australia, in Pakistan at functions and his family members who were harmed or killed, a letter to [a named official], and a brochure of the BNM in 2018, articles, a medical certificate for the applicant from a GP dated [July] 2014 stating the applicant has anxiety and depressive symptoms. A submission provided in November 2018 includes newspaper articles, letters of support, and videos. Further letters provided included a membership confirmation letter from Baloch Students Organisation Azad (BSO-A), a statement of [name deleted] also known as [another name] of Voice for Baloch Missing Persons [office holder] (VBMP) and a Baloch Students Organisations Azad (BSO-A) membership confirmation letter.

    The hearing

16. At the hearing the applicant spoke convincingly and in detail about joining BSO in 2004, his activities as a member, and the aims of BSO. He spoke in some detail about being arrested 3-4 times during this period, held for a number of hours and then released.

17. The applicant discussed his abduction in some detail, consistent with the evidence he gave to the delegate and his written claims. He said that after this he continued his activities for BSO and BNM but tried to do them discreetly. He said his family had given an undertaking that he would not be active and they kept asking him to stop him all the time but he did not stop.

18. He said that he had been [Position 1] of BSO for his zone and then in BNM he was [Position 1], [Position 2] and after that [Position 3] of his zone. He said he became [Position 1] of BSO in 2006, he became [Position 2] of BNM in 2011 and [Position 3] in 2012. .

19. He said he had not been abducted or arrested after 2009. I noted that this seemed odd that he had taken on a greater role in BNM but that did not appear to lead to increased attention from the authorities. He said that the reason for this was because after he was abducted they became more aware and were doing activities very carefully. He said many friends and zone members were abducted and killed, and he was lucky to have not been arrested or abducted again. The applicant said they had been careful by changing their mobiles regularly, not having open meetings anymore, and when he published things he did not do it in his name – he pointed to the articles in [Publication 1]. He said then he started using the alias [Alias 1].

20. He said around this time agencies started to call, they used blocked numbers and were threatening them. He said they were ISI and military intelligence. I asked how he knew they were these agencies and he said they used unknown numbers and no one else has access to these in Pakistan. He said they were frequent. He said since he had come to Australia they had called his family and warned them that he was doing activities in Australia.

21. He said he had been very lucky not to have been abducted again, there had been many activists who had been abducted and returned dead, and there had been others who were abducted and released as he had been. 

22. He detailed his activities in Australia. He said he had done rallies and protests and referred to the photographs and emails. He said he had met people and tried to raise awareness of the Balochistan issue and what the authorities are doing to the people. He said that before he came to Australia there was no BNM zone in Australia. He was instrumental in setting that up and he could represent the issue of Balochistan and the Baloch people. He spoke of the proud history of Balochis in Australia dating back 100 years to the Baloch cameleers. He said he had met these people and got to know them and had given them awareness of what was happening in Balochistan.

23. He said using the name [Alias 1] he had met people including politicians and those from political parties. He noted that he had used the name [Alias 1] in Pakistan as well, prior to coming to Australia.

24. I noted that the phone number on the letterhead from ‘[Alias 1]’ was not the same as the phone number he had provided for himself and asked if in fact he was ‘[Alias 1]’. He invited me to call the number from the hearing room and on doing so his mobile telephone rang. He confirmed that he had two numbers registered in his name and he uses this second one for political activities as [Alias 1].

25. The applicant discussed the events he had organised through [social media], including 3-4 rallies each year, the pictures of which they were careful to blur, he pointed to pictures of a protest about female abductions in Balochistan, an event for Harmony Day in [Suburb 1], a day of remembrance, and various talks. He said that they were trying to raise their membership throughout Australia, and he had been given more responsibility with a central position and was now a [specified office holder] as well. He said this meant that he used to work only in the Australia zone but now he was working internationally.

26. The applicant discussed the photos taken in Pakistan of him with various BNM office holders, many of whom he claimed had been disappeared. He described in detail the pictures of his sister at the disappeared person’s sit in where she was calling for his release when he had been abducted.

27. The applicant discussed his return to Pakistan in December 2013. He said he returned because his mother was very ill and his brother was getting engaged. He said that he had the protection of his brother the assistant commissioner and this was why he was able to safely do this. He said that because of him the authorities had abducted his brother-in-law and had attacked his brother. He confirmed that he had had not been harmed.

28. The applicant spoke of what he feared would happen if he returned. He said that before he had just been an active member, but now he was working internationally and bringing all of these things to the attention of the international community. If he returned now they would abduct him again and definitely kill him. he said that before they had taken the guarantees of some family members but now there is no one who can give a guarantee. He said he feared ISI and other agencies in Pakistan. He said the authorities were also using Islamist groups in Balochistan. He said that he did not support violent Baloch nationalists and he said that every time there was an attack by these nationalists, the authorities would come and take the missing person protestors.

29. I asked if any of his family members were involved with BNM or Baloch nationalism. He said none of them are because they cannot do anything in their government jobs, but that he has a lot of cousins and relatives who are active. He said that there are many of them have been abducted and killed.

30. He said he could not relocate within Pakistan because he would be active about Balochistan issues wherever he was and the authorities would not tolerate this.

31. I took evidence from the applicant’s witness, [Mr A]. [Mr A] is an Australian citizen and an employee of the Australian government. He said that he had decided to change his name in Australia and had spoken to his father in Pakistan who had not wanted him to because he feared his son would suffer harm or discrimination if he returned to Pakistan. He said that some of his friends thought he was stupid as it could cause problems for him if he returned to Pakistan, as there have been instances of people who go and visit relatives and have been abducted, he said there was a Norwegian citizen who is still missing after returning to visit Pakistan.

32. He said he had known the applicant since 2003 or 2004 when they had studied together and he had seen the applicant working with people as part of BSO. He said he himself was not political because despite being an ethnic Baloch he did not have the courage to work with these associations and his family would not let him participate. He said that he had seen the applicant doing this work though. He said that things had changed in 2006 due to the military regime. He said he had seen the applicant working as part of BSO and then he had moved to Australia but was in touch with the applicant and then they re-met in Australia when the applicant came over here. He said the applicant had been working in zonal positions in BSO and BNM in Pakistan. The applicant had participated with other BSO members including [Mr A]’s friends. He said that the applicant has been part of the negotiations to get a UNHCR official released who had gone missing but they had turned up some days later dead and dumped in the river. He gave evidence about the applicant’s abduction in 2009.

33. [Mr A] said he did not want to see a person who was working for his rights as a Baloch being taken away. He said there was not a lot of recognition for missing persons and Pakistan was in self-denial about the abductions and killings. He said he had been living in Australia since 2009 and even though he was not a political person his family had asked him not to come back for at least 6-7 years. He said that they were not allowed to learn their Baloch language. He said that BNM and BSO were operating but it was hard to find mention of them in Pakistan because they had to work underground.

34. [Mr A] said that if the applicant is returned he will definitely go missing and will be tortured, and may be killed and tortured and dumped. He noted that this had happened to many BSO and BNM workers. He said the applicant has a problem because he has spoken up and Pakistan warns people not to do this. He said he had courage to speak about these things only because he had been living in Australia for some time.

35. I discussed the adverse information in the dob-in with the applicant, noting that the dob in did not refer principally to him but that he was mentioned as one of a group of people who were contriving their applications for protection. The applicant responded that this was not true.

36. At the conclusion of the hearing the applicant gave the Tribunal permission to contact the writers of the letters he had provided.

37. After the hearing the Tribunal contacted [a named person] of the Baloch National Movement based in the UK. He confirmed that he was the writer of the [November] 2018 letter from the BNM UK and he confirmed the letter was issued by him in support of the applicant’s protection case. The Tribunal also contacted [Mr B], [office holder] of the Baloch Republican Party. [Mr B] also confirmed the letter provided was written by him.

    Country information

38. DFAT reports that Balochistan has historically suffered from ethno-sectarian tensions and politically motivated violence, including violence from an active separatist movement and that across the country, Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors, with 354 people killed in terrorist attacks in 2018.[1] Daesh/ISIS and the TTP are active in Balochistan.[2]As set out in the delegate’s decision, Baloch nationalism has a long history. This has included both violent and peaceful attempts to create a Baloch nation.[3] The Pakistan authorities appear to have attempted to suppress both. Commentaries note that this suppression has taken on a new force since the rise of the ‘new’ Baloch nationalism in 2006, which has been linked to the comparative poverty of Balochistan, the forceful response by the authorities to calls for greater self-determination for Baloch people, the decade of forced disappearances, and the intersection of global and regional politics with the China-Pakistan Economic Corridor (CPEC).[4] There are credible claims that most attacks are not recorded due to the authorities as well as Baloch separatists restricting the media from large parts of Balochistan.[5] According to some news reports, the Pakistan state successfully sought to have ‘free Balochistan’ adverts removed from black cabs in London.[6]

    [1] DFAT Country Information Report Pakistan, 20 February 2019, 3.107, 2.69.

    [2] DFAT Country Information Report Pakistan, 20 February 2019.

    [3] Grare, F., Balochistan: The State Versus the Nation, 11 April 2013, Carnegie Endowment for International peace, Kumar, M., Understanding the dynamics of Baloch nationalism, 23 November 2009, ORF,

    [4] Ahmer, M., Politics: Why is the current Baloch nationalist movement different from the rest?, 6 November 2016, Dawn,

    [5] DFAT Country Information Report Pakistan, 20 February 2019, 3.191, European Asylum Support Office Pakistan Conference', Cyril Almedia, Assistant Editor of Dawn, 16–17 October 2017, p. 20, 'Black hole in Rising Sun?', Friday Times (Pakistan), 2 June 2017,

    [6] Mortimer, C., ‘TfL removes 'Free Balochistan' adverts from London black cabs after pressure from Pakistani government’, 6 November 2017, the Independent, type="1">

39. As noted above, enforced disappearances are a significant issue in Balochistan, as they are across Pakistan.[7] Reports of disappearances, DFAT notes, became more frequent during Operation Zarb-e-Azb and Radd ul-Fasaad, and continued in 2018.[8] Many credible organisations have documented a pattern of enforced disappearances in Balochistan, including the very detailed reporting by Human Rights Watch of a large number of cases in the period 2009 – 2010 specifically.[9] The UN Working Group on Enforced or Involuntary Disappearance has more than 700 cases pending from Pakistan, including from Balochistan, whilst the Commission of Inquiry on Enforced Disappearances (COIED) has 2178 cases unresolved, but the numbers recorded by victims groups are much higher, and despite assurances from the Pakistan government, the practice continues, with those forcibly disappeared at risk of torture and death during captivity.[10]

    [7] DFAT Country Information Report Pakistan, 20 February 2019, 4.1.

    [8] DFAT Country Information Report Pakistan, 20 February 2019, 4.1.

    [9] Human Rights Watch, “We Can Torture, Kill, or Keep You for Years” Enforced Disappearances by Pakistan Security Forces in Balochistan, 28 July 2011,

    [10] Amnesty International, Pakistan: Enduring Enforced Disappearances, 27 March 2019,

    Findings

40. The applicant has provided copies of his Pakistan passport as well as other Pakistani identity documents. On the basis of this evidence I find that the applicant is a national of Pakistan which is also his receiving country. I also accept on this information that the applicant is who he claims to be. There is no evidence before me that the applicant has a right to enter and reside in a third country and I so find.

41. At hearing, whilst I had some concerns about minor aspects of his claims, I found the applicant to be generally credible. I found his witness to be very credible. The applicant also provided a large amount of documentary evidence, which I will refer to below.

42. I have carefully considered the applicant’s claims about his political activities in Pakistan. I accept that he was active in the student organisation BSO and then in BNM in Pakistan from 2004 until his travel to Australia in 2013. The applicant spoke knowledgeably and consistently of his experiences and motivations for being involved with these organisations. He has also provided a large number of photographs of him in Pakistan at protests and meetings. I note and accept that he wrote at least one article, and may have authored others, for [Publication 1] in this time. He has also provided letters attesting to his activities with these organisations from senior leaders in those organisations, and as noted above, two of the more recent letters were verified by the Tribunal with the writers. I note also the evidence of [Mr A]. I found him to be a very credible witness and I give his evidence of the applicant’s activism in these organisations very significant weight. I accept that the applicant was a Baloch nationalist activist with the BSO and then BNM in Pakistan from 2004 until his departure for Australia.

43. I have considered the evidence in relation to his claim that he was the victim of an enforced disappearance [in] 2009 for approximately 9 days. It is not true, as the delegate claims, that it is highly unlikely for the authorities to abduct someone and release them some days later, as the reports from Human Rights Watch and Amnesty International demonstrate. The applicant described treatment and a modus operandi consistent with the enforced disappearances described in these reports and elsewhere. His evidence was consistent with his previous evidence on this. I have also placed considerable weight on the photographic evidence of his sister at the disappeared persons sit-in. The applicant was able to fluently describe her in each photograph as well as others in the photograph. I accept that the applicant was abducted by the security forces for reasons of his political opinion, being a supporter of Baloch nationalism. I accept that his immediate family hold government positions. I accept his evidence that this meant he had some level of protection, and that his family were able to successfully seek his release. I accept that after this he kept a low profile for a time but then returned to activism and was threatened.

44. I accept that the applicant voluntarily returned to Pakistan in December 2013 because he believed he had a level of protection from his brother and family more generally, and avoided harm by acting discreetly whilst there.

45. I accept that the applicant has been an outspoken advocate for Baloch nationalism in Australia. I accept that he has taken a leading role, as ‘[Alias 1]’ in local efforts to have the issue publicised more widely, that he has organised a number of protests and has met politicians and others about these events. I accept that in recognition of this he has recently been given additional responsibilities which are more internationally focused. I have considered whether he has engaged in these activities for the sole purpose of strengthening his protection claims, and mindful of the information covered by the certificate on the Department file, I have carefully considered this. However, I place great weight on the evidence of the witness, the senior leaders contacted by the Tribunal, and the photographs and Facebook posts that the applicant showed me to find that the applicant has been very consistent in his activism whilst here, he has continued this for some years, and he speaks with conviction of the political concerns he has. Even if he has some thought that this may assist his protection claims, given the evidence from these sources, which I give weight to, I do not accept that he has engaged in his political activities here for the sole purpose of strengthening his claims.

46. I have carefully considered what may happen to the applicant if he returns to Quetta. It is clear that the Pakistani authorities continue to oppose both violent and non-violent activism for Baloch nationalism. It is also clear that operation Zarb-e-Azb, according to DFAT, has led to more frequent reports of enforced disappearances. The issue of Baloch nationalism continues to be an issue there.

47. I find that if the applicant were to return to Quetta, he would continue to be politically active, as he was previously, or at a greater and more visible level given his now international connections with Baloch activists in Australia, the UK and Geneva. Nor can we ask the applicant to behave discreetly about an issue that I accept he cares about and wishes to express his views on. I find that in doing this he would come to the attention of the Pakistan authorities, as I find he has previously. I find that there is a real chance, as opposed to one that is remote or far-fetched, that if he returns to Quetta, he would suffer harassment, threats, and the very real prospect of being a victim again of an enforced disappearance. I find that such treatment constitutes serious harm because it would result in a threat to his life or liberty, significant physical harassment or significant physical ill-treatment, that it would be for the essential and significant reason of his political opinion, and that it would be systematic and discriminatory in the sense that it would be non-random but directed towards the applicant. The conduct would therefore constitute persecution.

48. Enforced disappearances are denied by the Pakistan government to be the result of the work of their agencies, but I consider that there is sufficient evidence, above, that the authorities either engage in, or are complicit in such enforced disappearances of political activists in Balochistan, I find that such actions of the state are not the enforcement of legitimate state objectives. I find that the state in cases such as those of the applicant is the agent of persecution. Because the state is the agent of persecution I find that the applicant cannot relocate within Pakistan to avoid the feared harm – were he to relocate I find he would continue to be politically active and would come to the attention of the Pakistan authorities wherever he moved, and he would then be exposed to the above harm feared.

    Does the applicant have a well-founded fear of persecution if he returns to Pakistan?

49. Having carefully considered the claims of the applicant which I accept, the evidence before me, and the country information, I find that there is a real chance, that is one that is not remote, that the applicant will suffer serious harm including his enforced disappearance, deprivation of his life or liberty or significant physical harassment or significant physical ill-treatment by the Pakistan authorities or their agents, for reasons of his Baloch nationalist political opinion, now or in the reasonably foreseeable future, if he returns to Pakistan. His fear of persecution, I find, is well-founded and he is a refugee.

    Conclusions

50. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

51. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Sean Baker
    Member