1620393 (Refugee)

[2021] AATA 1043

1620393 (Refugee) [2021] AATA 1043 (12 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620393

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Dr Colin Huntly

DATE:12 January 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 12 January 2021 at 10:28am

CATCHWORDS
REFUGEE – protection visa – Pakistan – actual and imputed political opinion – Baluchistan independence – membership of the Baluchistan Student Organisation (Azad) (BSO-Azad) – particular social group – Balochi Zikri Muslim – principles for credibility assessment – departed and re-entered Pakistan lawfully without issue – document authenticity – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 104
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v MI [2020] FCCA 2142
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253

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, who claim to be citizens of Pakistan, applied for the visas on 2 April 2014 and the delegate refused to grant the visas on 21 November 2016.

3. The applicants appeared before the Tribunal on three occasions to give evidence and present arguments.  The first hearing with the applicants was held on 8 November 2019 and the second hearing was held on 20 January 2020.  It became evident that a decision on this review application would turn on questions of credibility.  Owing to hearing restrictions necessitated by the COVID-19 emergency, a third in-person hearing could not be scheduled with the applicants until 10 December 2020.  Following this third hearing it was agreed to hold a telephone hearing with the central credibility witness for Applicant 1 on 23 December 2020 at a mutually acceptable time to account for the time-zone differences between Perth, Western Australia and [City 1], [Country 1]. 

4. Arrangements were made to conduct the telephone hearing, however, the applicant’s [City 1]-based credibility witness was found dead in questionable circumstances in that city [in] December 2020.[1]  The Tribunal hearings were conducted with the assistance of an interpreter in the Urdu and English languages.

   [1][Source redacted].

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearings.

   RELEVANT MIGRATION HISTORY

6. The applicant’s movement history is as follows:

   ·Applicant 1 refused a Tourist visa to visit Australia (2010).

   ·Applicant 1 arrived in Australia [in] April 2013 travelling on a [Student] visa.

   ·Applicant 1 returned to Pakistan [in] July 2013 and returned to Australia [later in] July 2013.

   ·Applicant 2 and Applicant 3 arrived in Australia [in] November 2013 as dependents on Applicant 1’s Student visa.

   ·Applicant 1 applies for a Protection visa in Australia on 3 April 2014 on behalf of the family unit.

   ·Applicant 4 is born in Australia on [date] and is subsequently included as a member of the family unit for the purposes of the Protection visa application.

   ·Application for a Protection visa refused by a delegate of the Minister by decision dated 21 November 2016.

7. The applicant then applied to this Tribunal for a review of that refusal decision on 1 December 2016.

   IDENTITY

8. Applicants 1, 2 and 3 provided copies of their Pakistan passports to the Department with the application for protection.  There is no reason to doubt the validity of these documents.  I have also viewed a birth certificate of Applicant 4 and note that his parents are shown on this document as Applicant 1 and Applicant 2.  I have reviewed these documents and have had the opportunity to interview Applicant 1 and Applicant 2 on three occasions.

9. On the basis of the information before the Tribunal, I find that all applicants are citizens of Pakistan, which is also their receiving country for the purposes of the refugee and complementary protection assessments. 

10. There is nothing to suggest that the applicants have a right to enter or reside in a third country for the purposes of any assessment under s.36(3) of the Act.

    WHAT IS THE BACKGROUND OF THIS APPLICATION?

    Introduction

11. All members of the family unit, with the exception of Applicant 4, originate from the city of Karachi in Sindh Province, Pakistan.  Karachi, a city of around 23 million people on the Arabian Sea, lies between the Indus River and the Sindh/Balochistan provincial border.  Applicant 4 was born in [Suburb 1], Western Australia. 

12. Applicant 1 seeks protection in Australia under s.36(2)(a) of the Act, and claims to hold a well-founded fear of persecution in Pakistan now and for the foreseeable future for the essential and significant reason of his long-standing, sincere and vocal support for Baluchistan independence as an activist-member of the Baluchistan Student Organisation (Azad) (BSO-Azad). He also seeks protection as a member of the persecuted minority of ethnic Balochi in Pakistan who identify as Zikri Muslims. The other applicants rely on the claims asserted by Applicant 1 as members of the same family unit.

    Delegate’s decision

13. In a written decision dated 21 November 2016, a delegate of the Minister refused to grant the applicants a protection visa.  The delegate summarised his reasons for refusing to grant the visa as follows:[2]

    [2]Delegate decision record, 21 November 2016, at (16)-(17).

    Overall credibility

    After considering all the evidence presented by [Applicant 1] and in view of the discussion above, I find the following:

    ·     The applicant could not provide a reasonable explanation for his failure to study in Australia and his responses in this regard are significantly contradictory.

    ·     The applicant failed to explain the delay in seeking protection in Australia and he conceded to having worked in Australia in excess of the limit imposed by his student visa.

    ·     The applicant presented fraudulent documents [to] support his claims about his political profile. His claims of his political activities contain generalities and were implausible.

    ·     From 2006 and until 2012, the applicant resided in [City 2] where he worked as a [Occupation 1] at the [City 2] airport. The applicant claims that the Military and Intelligence services were after him. Despite his claimed profile however, he has frequently travelled to Pakistan since 2009 without any issues. His statements that the Military and the ISA were not able to find him are implausible.

    After considering all the evidence and in view of the discussion above, I am not satisfied that the applicant is a credible witness. I am not satisfied that his claims of his political profile are credible and therefore I will not consider further his claims in this decision record.

14. And:[3]

    While I accept the applicant is a Zikri- Baloch, on a cumulative consideration of the applicant’s claims, relevant country information and all other evidence before me, I find that the applicant’s fear of harm is not well founded. As I am not satisfied that the applicant has a real chance of being subjected to persecution in Pakistan on the grounds of his Zikri Baloch ethnicity and religion, I therefore find that the applicant's fear of persecution, as defined under the Refugees Convention, is not well founded.

    [3]Delegate decision record, 21 November 2016, at (23).

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. 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).

17. 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.

18. 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’).

19. 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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

20. Relevantly, I note the DFAT Country Information Report, Pakistan (20 February 2019) addresses the issue of Balochistan separatist tensions at [2.96], [3.107] and [3.159].  I further note that relevant concerns are also raised in the DFAT report relating to issues of blasphemy at [3.81]–[3.89], groups of interest at [3.175]–[3.184], enforced or involuntary disappearances at [4.8]–[4.12], institutionalised use of torture at [4.17]–[4.20] and military and intelligence services at [5.3]–[5.8].  I also note that the more recent UK Home Office publication Country Policy and Information Note, Pakistan: Actors of Protection (June 2020) at [2.3.1] states:

    Where a person has a well-founded fear of persecution or serious harm from the state, they are unlikely to be able to avail themselves of the protection of the authorities.

21. A fear of being persecuted is well-founded if there is a ‘real chance’ of a given applicant being persecuted.[4]  In Chan v MIEA Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’ – ‘a reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’.  His Honour saw no significant difference in these expressions, but preferred the expression ‘a real chance’ because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia.[5] 

    [4]Chan v MIEA (1989) 169 CLR 379 at 389, 406–407; and, 396–8, 428–9. Gaudron J did not adopt the ‘real chance’ test.

    [5]Chan v MIEA (1989) 169 CLR 379 at 389.

22. The High Court has also emphasised that although the expression ‘real chance’ clarifies the term ‘well-founded’, it should not be used as a substitute.  Accordingly, I am mindful of the Tribunal’s obligation to apply the language of the Convention.[6]  A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.  According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:[7] 

    … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

    [6]MIMA v Guo (1997) 191 CLR 559 at 572–3. In NACB v MIMA [2002] FCAFC 140 Sackville J (Beaumont J agreeing), referring to Guo, found that ‘decision-makers will be on very dangerous ground indeed if they employ an expression not found in the Convention (‘so remote as to be fanciful’) and assume that the negative (‘not so remote as to be fanciful’) is equivalent to the expression that is found in the Convention (‘well-founded’)’: at [58].  In SZRCI v MIAC (2012) 214 FCR 584 the Federal Court reiterated that use of language other than that in the Convention, such as ‘real chance’ will not necessarily give rise to error, and that the ultimate question is whether the phrase ‘well-founded fear of being persecuted’ was correctly applied: at [47].

    [7]Chan v MIEA (1989) 169 CLR 379 at 389.

23. In the same case Dawson J stated:[8]

    ... a fear can be well-founded without any certainty, or even probability, that it will be realized.  ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.

    [8]Chan v MIEA (1989) 169 CLR 379 at 397–398.

24. And Toohey J stated:[9]

    A ‘real chance’ ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. 

    [9]Chan v MIEA (1989) 169 CLR 379 at 407.

25. Similarly, according to McHugh J:[10]

    [A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.

    [10]Chan v MIEA (1989) 169 CLR 379 at 429. However, this does not mean that the Tribunal must consider whether a 10 per cent chance of persecution has been established. In Altintas v MIEA (Federal Court of Australia, Nicholson J, 23 January 1997) the Court held at 10: ‘The ratio decidendi of Chan did not require the Tribunal to consider whether a 10 per cent chance of persecution was established. Rather the Tribunal was required to consider whether, on all the evidence before it, a “real chance” was established’.

26. Thus, as the High Court confirmed in MIEA v Guo, Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[11]

    [11]MIEA v Guo (1997) 191 CLR 559 at 572. It is important, however, that this should not be viewed as an alternative test that there must be a risk of persecution shown on the probabilities, as that would involve an incorrect and more onerous test: see PW87/2001 v MIMA [2001] FCA 1083 at [7].

27. It is against the background of this judicial guidance that a decision-maker must reach the appropriate level of satisfaction for the purposes of s.36(2)(a) of the Act.

28. The issue in this case is whether or not Applicant 1 engages Australia’s protection obligations under s.36(2)(a) of the Act and Article 1A(2) of the Convention (the refugee criterion).

    The Tribunal’s decision in summary

29. After reconsidering the application for protection afresh, I have concluded, for different reasons, that the decision should be remitted for reconsideration.

30. In particular, I find that Applicant 1 faces a real chance of persecution if he returns to Pakistan now and in the reasonably foreseeable future for the essential and significant reason of his current and future, actual or imputed political opinion as a sincere advocate for Balochistan separatism demonstrated in his longstanding membership of BSO-Azad and ongoing commitment to the political aims of this organisation which organisation is a banned organisation within Pakistan.  The applicant’s profile to potential agents of harm in Pakistan now and in the reasonably foreseeable future is further raised due to his cultural and religious self-identity as a Zikri Muslim.  On the basis that the principle actor of harm feared by the applicant is the Pakistan state, I find that the real chance of persecution relates to all areas of Pakistan.

31. The other applicants meet the requirements of s.36(2)(b)(i) of the Act, on the basis of their membership of the same family unit as Applicant 1.

    DECISION MAKING FRAMEWORK

    President’s Direction

32. I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020.  I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  In particular:

    ·     that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[12] and

    ·     that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[13]

    [12]At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975, s.33(1)(b)).

    [13]At [8.1].

    Applicable legal principles

    Applicant credibility

33. The task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, I have been guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[14]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

    [14]For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA& Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

1. As noted by Nichols J in the recent Federal Circuit Court decision in DAJ19 v MI:[15]

   [15][2020] FCCA 2142 (5 August 2020), at [69]–[71].

   69.There can be no doubt that legal reasonableness is a necessary and essential element in making a lawful decision (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80] [89], Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4], [53], Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [58]).

   70.The principles relevant specifically to the consideration of an applicant’s credibility were more recently summarised by the Full Federal Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (per Kenny, Kerr and Perry JJ) (at [30]):

   “30.The relevant principles can be summarised as follows.

   (1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review:  CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

   (2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

   135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   (Emphasis added)

   (3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), ‘[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].’ Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

   (4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

   56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error.  That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa.  Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

   (citations omitted)

   (5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’ (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, ‘[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality’: CQG15 at [61].”

   71.… the Full Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (per Kenny, Griffiths and Mortimer JJ) stated at [41] (and see [22]-[28]):

   “41. For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.

   (a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.

   (b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.

   (c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae.  Merely because a decision-maker has ignored ‘relevant material’ does not always give rise to jurisdictional error in the present context.  The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case.  Those matters inform an assessment of the seriousness or gravity of the error.

   (d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).

   (e) Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered.  Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).

   (f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.”

2. In Guo Wei Rong and Pam Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[16] Foster J stated that ‘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.’[17]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

   [16](1996) 40 ALD 445.

   [17]At 482.

3. I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[18] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[19]

   First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.

   [18](1996) 185 CLR 259.

   [19]At [25].

4. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor are decision-makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, nor are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:

   where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[20]

   [20][1997] FCA 1198 at (11).

5. Nevertheless, as Burchett J counselled,[21] it is necessary to:

   … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

   [21]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

6. The Full Court of the Federal Court has noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[22] 

   [22]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.

7. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[23]  Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.  That being said, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[24] 

   [23]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558–9.

   [24]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

8. In addition, I am aware that if a Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[25]  This is sometimes referred to as the ‘what if I am wrong’ consideration.  I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[26]

   … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

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

   [26](1999) 197 CLR 510 at [191].

9. On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

10. If a decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.  In this respect, in Iyer[27] the Tribunal there had concluded that certain return visits to Sri Lanka from Australia were voluntary.  This (so the Tribunal reasoned), supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. 

    [27]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

11. The Court on review confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[28]  I recognise that such a principle cannot be relied upon as an iron rule.  However, it is potentially a useful illustration of the kind of weighing process that an objective decision-maker must make when making findings relevant to the existence of a well-founded fear of persecution.  Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence.  This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.

    [28]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

12. In this respect, I note the comments of Flick J,[29] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:

    31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny.  Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:

    [78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

    [29]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].

13. As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[30]

    Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis.  While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

    (a)failure to afford procedural fairness;

    (b)reaching a finding without any logical or probative basis;

    (c)unreasonableness; and/or

    (d)jurisdictional error as discussed by Flick J in SZVAP.

    [30]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].

14. The particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling.  In this respect, I note that, later in the same judgement,[31] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9^th Circuit Court of Appeals decision in Stoyanov v INS[32] (Stoyanov):

    The Court in Stoyanov went on to state that ‘minor inconsistencies cannot support an adverse credibility finding’ and that ‘trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible’: 

    [31]CQG15 v MIBP [2016] FCAFC 146 at [43].

    [32](9^th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.

15. I note also, that a number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be.  Firstly, as the Federal Court observed in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:

    … the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.

    In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

    52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

1. Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[33]

   32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is ‘satisfied’ that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).

   33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others.  To the contrary, ‘[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything.  Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole’:  S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that ‘the well has been poisoned beyond redemption’:  S20/2002 at [49]; and Chen at [35].

   34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness. 

   [33]Per Rangiah, Perry and Bromwich JJ.

2. In addition to the foregoing judicial guidance, I have also considered the Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, which provides:

   It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[34]

   [34]At [8].

3. The Guidelines also advise that:

   Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.

   A Member should maintain and be seen to have an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend.  An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.

   However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[35]

   [35]At [17]–[19].

4. With respect to contradictions, inconsistencies and omissions, the Guidelines state:

   Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. 

   The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[36]

   New claims and evidence

   [36]At [27]–[28].

5. Applicants are required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.

6. This principle is enshrined at s.5AAA of the Act, which clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view a Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim.  This is consistent with the well-settled proposition, referred to above, that it is for an applicant to make their own case.[37]

   [37]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

7. As a general principle, therefore, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made.  Of particular relevance here is the ongoing requirement under s.104 of the Act for an applicant to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity.

8. Accordingly, it may be open to the Tribunal to draw an inference unfavourable to the credibility of a claim or evidence where the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented at the first reasonable opportunity.

9. In making such an assessment, I am mindful of the specific considerations mentioned in the President’s Direction relating to opportunities to raise a claim or evidence, changes in the available country information or other relevant information, relevant changes in the personal circumstances of the applicant or diagnosed medical conditions that may have impaired an applicant’s memory or self-expression.[38]

   COVID-19-related claims

   [38]At [9].

10. It is acknowledged that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia.  I note that this decision is not a decision on removal.  However, I am also mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.  Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of Pakistan generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.[39]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [39]SZTAL v Minister for Immigration [2016] FCAFC 69.

    Hearings

    First hearing

11. At the first hearing with the Tribunal on 8 November 2019, I asked Applicant 2 if she was making any claims of her own under the present review.  She confirmed that she had no personal claims and was relying entirely on the claims of Applicant 1 as a member of the same family unit.  I asked Applicant 1 and Applicant 2 individually and together if Applicants 3 and 4 had any individual claims that should be considered by the Tribunal and both parents responded that Applicant 3 and Applicant 4 had no individual claims under the present application, but were relying entirely on the claims of Applicant 1 as members of the same family unit.  I asked the representative if there were any submissions on this point and the representative responded in the negative.

12. I confirmed with Applicant 1 that he claimed to engage Australia’s protection obligations for the essential and significant reason of his actual and imputed political profile as an outspoken advocate for Balochistan independence as evinced in his support of community-based NGOs including BSO-Azad, which had been listed as a proscribed organisation in 2013 by the Pakistan government; and, his cultural and religious identity as a Balochi Zikri Muslim in Pakistan.

13. I took the applicants briefly through the delegate’s record of decision and noted that the delegate refused the application for protection largely on credibility concerns, many of which appeared to be reasonable in the circumstances.  Accordingly, credibility would be very much in issue on review.  I put it to the applicants that this would be central to future hearings.  After inviting further written submissions, the hearing concluded.

    Second hearing

14. From the outset of this review, it was evident that any decision would turn on questions of credibility.  While a second hearing could be held in person in a relatively expeditious manner, owing to hearing restrictions necessitated by the COVID-19 emergency, there was a considerable delay in scheduling subsequent hearings. 

    Ethnically Balochi Zikri Muslim claims

15. At the second hearing with the Tribunal on 20 January 2020, I asked Applicant 1 and Applicant 2 about their self-identity as ethnically Balochi adherents of the Zikri Muslim faith.  Both stated that they experienced lifelong harassment, intimidation and threat from the Sunni Muslim majority population in Pakistan within the community generally throughout their formative years, including schooling.  This harassment, intimidation and threat was pervasive and state-sanctioned, despite the constitutionally mandated freedom of religion.  This culture of persecution led them to adopt a form and practice of belief which was both private and discreet.  This form and practice of belief was so deeply ingrained within them as Zikri Muslims that they felt bound to continue it in Australia.  It also accounts for the commitment both have had throughout their lives to the support of community-based NGOs serving the needs of ethnic-Balochi’s and Zikri Muslims.  I accept this evidence as being sincere and credible.  I also find that the harm feared by Applicant 1 in Pakistan now, and in the reasonably foreseeable future, for this essential and significant reason is objectively well-founded, having regard to the available country information relating to Blasphemy referred to above. 

16. I note that Applicants 1 and 2 have described their own past and continuing determination to live a discreet life in order to reduce the chance that they would be harmed in Pakistan for this essential and significant reason below a real chance. Accordingly, I find that, viewed individually, this essential and significant reason would not engage Australia’s protection obligations under Article 1A of the Convention for the purposes of s.36(2)(a) of the Act in, and of, itself.

    BSO-Azad related claims

17. I noted the DFAT report above relating to exit and entry procedures and raised the fact of Applicant 1 having departed and re-entered Pakistan lawfully on at least 9 occasions prior to seeking protection in Australia without issue.  I noted that a reasonable person might think that such frequent returns suggested both that Applicant 1 did not hold a well-founded fear of harm in that country and that the Pakistan state had no particularised interest in Applicant 1 for any reason.  Applicant 1 stated that he had never claimed to be a leader of BSO-Azad, merely an active member and financial supporter of the movement.  He stated that he only perceived his involvement with BSO-Azad to be an essential and significant reason to face a real chance of serious harm in Pakistan after the organisation was placed on the list of proscribed terrorist organisations by the Pakistan National Counter Terrorism Authority on 15 March 2013.[40]  These explanations appear to have been sincere and credible.

    [40]See: Proscribed-OrganizationsEng-1.pdf (nacta.gov.pk) (accessed 8 January 2021).

18. I note that the applicants supplied letters of support corroborating the claims of Applicant 1 of being a member and active supporter of BSO-Azad in Pakistan.  These include an undated letter under the signature of [Mr A], [office bearer] of BSO-Azad; a support letter dated [in] August 2014 under the signature of [Mr B], BSO-Azad [position holder]; a support letter dated [in] October 2019 under signature of [Dr C], [office bearer] of the Baloch Human Rights Council; and, a support letter under the signature of [Ms D], Ex-[office bearer] of the BSO-Azad.  The last in this list was submitted in its original ‘[Country 1]’ airmail envelope showing the sender’s handwritten postal details and identifying the author as ‘[Ms D – with variant surname]’.

19. I pointed out to the applicants and their representative that the documents of support exhibited numerous difficulties in terms of authenticity.  I suggested that some way of resolving these difficulties would need to be found, given that they appeared to have been relevant to the delegate in the first instance, and the concerns appeared to be reasonable in all the circumstances.

20. I asked why the applicant returned to Pakistan in 2013 after obtaining a Student visa in Australia.  The applicant indicated that it was important to ensure that his spouse and their child were safe.  He returned in order to make the necessary arrangements for them to follow him to Pakistan towards the end of that year. 

21. Shortly thereafter, the hearing was concluded and the applicants were invited to make any additional submissions relating to the credibility concerns that had been discussed at the hearing.  Following the second hearing, the restrictions created by the COVID-19 pandemic made it impractical to hold a suitable in-person hearing for a considerable period.  Given that the decision would ultimately turn on credibility concerns, this delay afforded sufficient procedural fairness to the applicants.

22. On 8 March 2020, the applicant’s representative provided the Tribunal with a submission addressing concerns arising from the first two hearings.  The submissions relating to ethnically Balochi Zikri Muslims were apposite and materially supported the findings I have made above.

    Third hearing

23. At the third hearing with the Tribunal on 10 December 2020, I took a detailed personal history from both Applicant 1 and Applicant 2.  I accept their claims to have been lifelong supporters of their cultural, ethnic and religious community in Pakistan.  This practical support found expression in community education, child care services and political commitment (with respect to Applicant 1) of BSO-Azad from a young age. 

24. Having had the opportunity to interview Applicant 1 in person on a number of occasions, I am mindful that a decision-maker must take each applicant as they find them.  Some applicants are more or less personable, some are more or less sympathetic in affect and presentation.  Faced with somewhat problematic documentation, a long-term pattern of returns to Pakistan over a number of years and a primary applicant who is not always an effective communicator in a second (or third) language, it can be challenging to remain focused on the essential merits of a claim for protection.  In this respect, I find the delegate’s credibility findings in the present application to have been, to some extent, understandable.  However, any determination in this jurisdiction must be primarily addressed to the merits of the claims asserted and not of the applicants themselves.

25. I invited the applicants to arrange a telephone hearing at which I could test the veracity of the support letters provided in the course of the application for protection.  After careful questioning, Applicant 1 acknowledged that of the persons who had provided support letters, the one with whom he had the longest, most personal, involvement in BSO-Azad was [Ms D] who resided at that time as a successful asylum seeker in [City 1], [Country 1].  It was left to the applicants’ representative to make the necessary arrangements to facilitate a telephone interview, allowing for the time-zone differences, in consultation with Tribunal registry staff not later than 23 December 2020. 

26. The third hearing was concluded with the understanding that a brief telephone hearing would be arranged not later than 23 December 2020 to take character evidence from [Ms D] in [City 1], [Country 1]. 

27. Following the third hearing with the applicants, the representative confirmed arrangements to hold the telephone hearing with [Ms D] in [City 1], [Country 1] at 10:00 am on Wednesday, 23 December 2020.

28. [In] December 2020 international news media reported the [death] of [Ms D] in [City 1], [Country 1].[41]  This was the second [death] of a Balochi separatist refugee activist living in exile in a western country in 2020.  I note the following extract from the DFAT country information report referred to above:[42]

    Pakistan is not a party to the UN International Convention for the Protection of All Persons from Enforced Disappearance, despite recommendations by the Senate’s Standing Committee on Human Rights. In its 2017 annual report, the HRCP recorded disappearances of bloggers, activists and journalists from all parts of Pakistan. In 2016, the US State Department reported ‘kidnappings and forced disappearances of persons from various backgrounds in nearly all areas of the country.’ On 12 May 2017, the UN Committee against Torture also raised concern regarding the significant number of cases of extra-judicial executions by police, military, paramilitary and security services involving torture and enforced disappearances in Pakistan.

    [41][Source deleted].

    [42]DFAT Country Information Report, Pakistan (20 February 2019) at [4.8].

29. As a result of the unexplained death of a BSO-Azad leader less than 24 hours before she was due to provide corroborating evidence in support of Applicant 1’s claims for protection, I am unable to infer what her evidence would have been.  However, I note that the applicants were willing for me to interview this person and had made the necessary logistical arrangements to facilitate that interview.  I also note that there is no reason to believe that this person was in any way unwilling to provide corroborating evidence in support of Applicant 1’s claims for protection.

30. On the basis of the foregoing considerations, I am satisfied that Applicant 1 is a sincere and lifelong advocate for and supporter of BSO-Azad.  This, together with my earlier findings that both Applicant 1 and Applicant 2 are committed supporters of community-based NGOs serving the needs of ethnic Balochi’s and Zikri Muslims in Pakistan lead me to find, cumulatively, that the harm feared by Applicant 1 in Pakistan now, and in the reasonably foreseeable future, for the essential and significant reason of his current and future, actual or imputed political opinion as a sincere advocate for Balochistan separatism demonstrated in his longstanding membership of BSO-Azad and ongoing commitment to the political aims of this organisation which is a banned organisation within Pakistan.  The applicant’s profile to potential agents of harm in Pakistan now and in the reasonably foreseeable future is further raised due to his cultural and religious self-identity as a Zikri Muslim.  This fear of harm is objectively well-founded, having regard to the available country information.  These essential and significant reasons have a sufficient nexus with the criteria at Article 1A(2) to engage Australia’s protection obligations in the relevant sense.

31. I also find that the harm feared by Applicant 1 in Pakistan now, and in the reasonable future, is serious harm for the purposes of s.36(2)(a) of the Act. I further find that Applicant 1 faces a real chance of serious harm in Pakistan now, and in the reasonably foreseeable future.

32. I further find that, given that agents of harm feared by Applicant 1 in Pakistan now and in the reasonably foreseeable future for this essential and significant reason principally include the Pakistan state, effective protection is not available to Applicant 1 anywhere in that country.

    CONCLUDING PARAGRAPHS

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

2. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that all other applicants (being the spouse and natural children of Applicant 1) are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

3. The Tribunal remits the matter for reconsideration with the following directions:

   (i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

   (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   Dr Colin Huntly
   Member