1722932 (Refugee)

1722932 (Refugee) [2022] AATA 2331 (8 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr George Vassiliou (MARN: 0746634)
CASE NUMBER:  1722932
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Scott Clarey
DATE:8 June 2022
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 8 June 2022 at 12:51pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – member of Balochi student separatist party – fear of harm from government forces and associated groups – home raided and family threatened – activity in Australia otherwise than for purpose of strengthening claim – delay in applying for protection – physical and mental health – country information – no state protection available and not reasonable to relocate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (4), (6), 36(2)(a), (3), 65, 438(1)(b)
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 September 2017 to refuse to grant [the applicant], a citizen of Pakistan, a protection visa under s 65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia. On 25 September 2017, [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.
[The applicant] appeared before the Tribunal in Melbourne on 5 May 2022 to give evidence and present arguments. [The applicant] was represented by his registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Balochi and English languages.
[The applicant] first arrived in Australia [in] August 2010 on a student visa (Subclass TU-572) granted to him on 1 April 2011, valid until 7 August 2012. He departed Australia [in] December 2012, returning [in] January 2013. [The applicant] again departed Australia [in] August 2015 returning [in] September 2015. [The applicant] has not departed Australia since [September] 2015. On 30 December 2015, he lodged the protection visa application that is the subject of this review and was granted an associated bridging visa.
On the basis of the copy of [the applicant]’s passport provided to the Department, I accept that he is a citizen of Pakistan and that his identity is as he claims it to be. I accept that Pakistan is [the applicant]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
[The applicant] set out his claims for protection in his application form as follows:
Q89:     I am seeking protection in Australia so that I do not have to return to:
A:PAKISTAN
Q90:     Why did you leave that country(s)
A:In 2015, i left Pakistan with my brother following the raid in my house ,threats from the Pakistani authorities and at that time the political situation in Balochistan was deteriorating day by day . We left Quetta, went to Karachi and Karachi to Australia . For more details please see the statement .
Q91:What do you think will happen to you if you return to that country(s)?
A:There is a lot of evidence that Pakistani agencies and government deliberately targeting students and political activists involved in the struggle for the Independence of Balochistan. As I said in my story i fear that i would be killed, kidnapped, tortured and dumped by the deserted road in Balochistan by Pakistani authorities and their criminal proxies like Taliban .
Q92:     Did you experience harm in that country(s)
A:As Baloch activist we consider the Pakistani authorities are criminal , they never help and never will help Baloch people . they use criminal gangs to target Baloch people. I have been threatened to be killed , if i returned to Balochistan or any part of Pakistan. Please see my story for more information.
Q93:     Did you seek help within the country(s)
A:As a Baloch student activist, i consider my-life to be in danger for many years Baloch students and activists have been tortured, killed and dumped on road sides. all the Pakistani government institution and there criminal proxies like Taliban are involved in such persecution and crimes for this reason i can not get help in Pakistan from the Pakistan government and his agencies.
Q94:Did you move, or try to move, to another part of that country/those countries to seek safety?
A:In 2015, I moved from Quetta to Karachi, secretly Karachi to Australia in 2015 and in Karachi my brother and I moved several times. To escape Pakistan authorities and his agencies. I know from my personal knowledge and information from organizations that there is no safe place for me to relocate in Pakistan. The Pakistani government and his agencies are deliberately and actively targeting Baloch student and Baloch activist in Pakistan and inside Balochistan.
Q95:Do you think you will be harmed or mistreated if you return to that country(s)?
A:As i said previously i will be killed, harmed , tortured and dumped on the road side by the Pakistani agencies and their proxies. For more information please see my story.
Q96:Do you think the authorities of that country/those countries can and will protect you if you go back?
A:As i mentioned in my story that we Baloch people specially students and Baloch student activists are persecuted. Pakistani government institutions are enemies of Baloch people (Baloch students and Baloch student activists) as they are committing genocide of Baloch people . I know the government of Pakistan and his agencies will never help me because as i said the policies are to eliminate Baloch people.
Q97:Do you think you would be able to relocate within that country(s)?
A:I believe as a Baloch Student activist ,(which i will continue if i returned to Pakistan), i will be targeted by Pakistani agencies and their criminal proxies. . There criminal activities are based on to kill Baloch student, Baloch students activities all over the country. For information please see my statement.
Evidence before the Tribunal
I note that a significant amount of new information was provided to the Tribunal by [the applicant] prior to the Tribunal hearing on 5 May 2022. I note that much of this evidence was new information that had not previously been provided to the Tribunal or the Department. This new evidence included various submissions of country information related to the situation in Balochistan. The Tribunal has had regard to these submissions. At the hearing, I informed [the applicant] and his representative that the Department had issued a certificate under s 438(1)(b) of the Act over information supplied to the Department, and that I considered the certificate to be valid. A copy of the certificate was provided to [the applicant]’s representative.
I discussed at length with [the applicant] at the hearing various aspects of his claims and specific details of the issues he claimed to have faced in Pakistan. I note that [the applicant] gave oral evidence that was largely consistent with his previous accounts of these claims and issues, and also the written submissions that have been made by him and on his behalf. [The applicant] stated that he was born and raised in Quetta, Balochistan Province, Pakistan. He said that he has [siblings]. [The applicant] said that he was raised a Muslim but he was not particularly religious and he described his ethnicity as being Baloch and part of the [Name] tribe. He has one brother living in [Country], who was recently granted asylum there, another brother living in [Australia], and [brothers and sisters] who still live in Balochistan. [The applicant] said that he finished high school in Balochistan in [year] and went on to study a Bachelor of [Subject 1]. He applied for and was granted a student visa for Australia and arrived here in August 2011. He studied a range of courses while in Australia, including [Subject 2] at [University], and an Advanced Diploma of [Subject 1]. He is currently in the final stages of a Bachelor of [Subject 1], and has completed work placements related to this course at a large [firm].
I asked [the applicant] about a trip home to Pakistan he took in August 2015. [The applicant] stated that he received a phone call from his father on [Date] August 2015 saying that his mother was very sick and had been hospitalised. He said her situation was critical and he took the decision to take leave from his course and return home to Pakistan to see her. On [Date] August 2015 [the applicant] arrived home in Pakistan to visit his mother. He said that he arrived at Karachi international airport and took the bus home to Quetta. He said that on [Date] August 2015 he was picked up by a cousin and taken to his uncle’s home to visit family there. While he was away from his family home, he received word from his father that the family home had been raided by Pakistani authorities from the frontier corps. I asked [the applicant] in detail about this claimed event. He said that during the evening two frontier corps officers had knocked on the door, asked about the whereabouts of [the applicant] and his brother and began to search the home. The men demanded to know where [the applicant] and his brother were, and confiscated a number of documents and electronic equipment including computers. [The applicant] said that a gun was put to the head of his sister and brother who were home, and a threat directed at [the applicant] was issued via them. He said that the threat included words to the effect that the government knew that [the applicant] and his brother were involved in anti-state activities and they would be found and taught a lesson.
[The applicant] said that the family, including him, were highly distressed by these events. He said that his uncle helped him gather his luggage and took him to an apartment he owned in Karachi. He said that he subsequently shifted houses every two days because he and his family were very concerned about [the applicant] being detected and detained by Pakistani authorities. I asked [the applicant] why, if the authorities were evidently looking for him as claimed, he had been able to exit the country seemingly without incident. He said that his uncle had contacted an old friend who used to work for Pakistan’s [name] Agency, who was also [an occupation], and this friend helped [the applicant] to change his airline tickets to a different flight out of Karachi. [The applicant] said that this same friend had shepherded [the applicant] through immigration at the Karachi international airport and on [Date] August 2015 [the applicant] was able to exit Pakistan on an outbound flight. I asked [the applicant] how the authorities had become aware of his presence in Pakistan. He said that he did not know but the presence of the frontier corps troops at his house meant that they obviously had found out through some means. [The applicant] said that he returned to Australia very distressed by what had occurred in Pakistan, and he commenced counselling and associated medication from around this time.
I asked [the applicant] about the BSO Azad organisation and how he had become involved with it. I note that [the applicant] demonstrated significant knowledge about the organisation’s history and activities. He said that it had started as a student organisation that advocated for the independence of Balochistan and Baloch human rights in general. He said the movement had gathered pace after a military operation in 2004 had killed some of its leaders. [The applicant] gave a potted history of various key events of the organisation’s recent past, including a 2009 policy which he labelled ‘kill and dump’, that had resulted in the abduction and assumed murder of various people associated with the movement. I asked [the applicant] about his specific personal involvement with BSO Azad. He said that he had become involved in mid-2007 as a student through what he described as ‘study circles’ that were focused on the Balochistan independence movement. He said that he had become involved in various types of student protests during this period and had attended meetings on a weekly basis. [The applicant] said that he met a named leader of the organisation in 2008 and had been introduced by him to other Baloch student activists. [The applicant] said that he had been involved in dozens of protests organised by the movement (around 20 to 30 he estimated). He said after 2009 his engagement with the movement dropped off somewhat because it had become much more dangerous to be involved and many fellow members had been forcibly disappeared by Pakistani authorities. He said that his father had decided around this time that it was not safe for him to study in Balochistan. He said that he and his family had become very fearful of prosecution and he had been unable to concentrate on his studies because every other day in the newspaper there were stories about mutilated bodies of Baloch activists who he knew.
[The applicant] said that after he arrived in Australia he had not been involved with the BSO movement and concentrated on his studies here. He said that after a trip home to Pakistan in 2012, he had realised the situation facing Baloch people had worsened and he was motivated to recommence his political activities in support of Baloch human rights and independence. He said that in 2014 he had founded a chapter of the movement in Melbourne. When asked why he had been motivated to do this at that time, given he had not been active in the movement for some years prior, [the applicant] stated that mass graves of Baloch activists had been uncovered in January 2014 which had shocked, angered and, ultimately, motivated him to become formally involved in the movement again and to organise on its behalf in Australia. He said that by this stage he was more established in Australia and had managed to come into contact, mainly through [social media] groups and the internet, with other Baloch students and activists in Australia. He said that he attended meetings with these people and groups and they had engaged in formal protest activities in Australia on behalf of the Balochistan independence movement. I questioned [the applicant] about allegations that these activities were motivated primarily to secure a visa outcome. He flatly denied these claims and said that the protest activities were genuine, and motivated by a sincere commitment to Baloch independence. I accept this.
I asked [the applicant] why there had been a delay in him applying for protection, after he had arrived in Australia several years earlier. He stated that he had never before been personally targeted, although he knew it was a threat and had curtailed some of his activities within the movement to lessen his personal risk at the time. I questioned [the applicant] specifically about how his political profile raised to such an extent between 2011 and 2014 that he was personally identified, and his family home was subsequently targeted and raided by Pakistani authorities in 2015. I asked [the applicant] directly why, if he did not have this profile prior to leaving Pakistan in 2011, he had subsequently acquired such a profile to warrant a raid of his family home in 2015. [The applicant] responded that over this time his family’s profile with the authorities had increased and he claimed that his cousins had been abducted. He said that his father and his grandfather before him, had been involved in the movement. He said that his activities in Australia, including by holding public protests, had been reported on and word of them had subsequently reached back to Pakistani authorities. [The applicant] said that this sort of international exposure and publicity particularly rankled the Pakistan government and there had been numerous documented examples of them taking steps abroad to silence these activities. [The applicant] made reference to newspaper articles that outlined claimed attacks on Baloch activists abroad, including two suspected murders, one in Canada and one in Sweden.
I asked [the applicant] what he feared if he were to return to Pakistan in the foreseeable future. He said that he feared he would be abducted and killed, just as many other activists had been over the last several years. He said that his house had already been raided, and he knew for a fact that his name was known to authorities and they were actively looking for him because of his association with the Baloch independence movement and associated protest activities in Australia. He said that even if this were not the case, being an educated Baloch was enough to arouse suspicion of involvement in the (student based) independence movement.
[The applicant]’s representative told the Tribunal that [the applicant] was at risk because he was Baloch, educated and known to be active internationally within the movement. He said that Pakistani authorities were particularly sensitive to international exposure regarding Baloch independence and human rights, as there was a media blackout on reporting these issues in Pakistan and the only information available is via the international press. He said that country information supports claims that the Pakistan government monitors international reporting, and Pakistani activists abroad who bring attention to the issue. He drew attention to a passage in the DFAT country information report on Pakistan that suggests human rights activists face a high risk of official discrimination and violence, particularly in conflict areas including Balochistan. He noted that [the applicant] is a Baloch activist, and his political views could also be imputed.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
COUNTRY INFORMATION
According to the DFAT country information report on Pakistan, Balochistan constitutes more than 40% per cent of Pakistan’s total area but is home to only approximately 3.6 per cent of the Pakistani population. Balochistan is described in the DFAT report as a conflict affected area where various human rights abuses have occurred, including those perpetrated by Pakistani security forces. Regarding the human rights situation facing human rights activists in Pakistan, including those in Balochistan, the DFAT report[1] stated:
Human rights activists face threats of violence and harassment from the military, government and militant groups. In September 2020, a group of independent UN human rights experts called on the Pakistani government to end the secret detention of Idris Khattak, an activist and former consultant for Human Rights Watch and Amnesty International who had investigated disappearances in Pakistan’s Federally Administered Tribal Areas. According to Amnesty International, activists, journalists and human rights defenders have been forcibly disappeared by authorities in Balochistan. Among them are Hasaan and Hizbullah Qambrani, who were picked up in February 2020 after participating in protests against enforced disappearances in Quetta. The pair were freed in May 2021 after the Baloch Missing Person’s Camp met with Prime Minister Imran Khan to plead for their release.
DFAT assesses NGO workers, human rights activists and civil society actors face a high risk of official discrimination and a moderate risk of violence, especially in conflict areas (including Khyber Pakhtunkhwa, the former FATA and Balochistan). NGO workers and activists that work on religiously sensitive issues face a moderate risk of societal discrimination and violence, as well as violence from militant groups. Harassment and monitoring by security forces can occur anywhere in the country
[1] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.112 – 3.113.
Various other country information sources report the issue of extrajudicial killings and forced disappearances of Baloch separatists and activists, including their targeting by Pakistan’s security forces. In a 2020 article, the Manohar Parrikar Institute for Defence Studies and Analyses in India stated:[2]
In Balochistan, human rights violations have become the norm. The Pakistan state and its security agencies have habitually trampled on the human rights of the Baloch people in the name of security and territorial integrity. The Pakistan state has been extremely sensitive to all expressions of ethnic autonomy and resistance, and more so in the case of Baloch leaders championing their rights. They are often charged with treason, branded as terrorists, and killed in encounters or picked up by security forces at will only to be added to the ever-expanding list of missing persons. In many cases, their dead bodies are either found in a badly mutilated condition by the roadside or their skeletal remains are discovered in mass graves.
In recent months, going by the reports in social media and online portals run by the Baloch diaspora, there has been a spike in military operations in Baloch areas like Kech, Panjgur, and Awaran districts.6 These areas were reportedly shelled by helicopter gunships and massive raids were carried out afterwards. This is all happening amidst the COVID-19 lockdown. In April alone, in the military raids, 16 Baloch were killed and as many as 73 people were picked up by the Pakistani forces, including students, women, children and infants. However, 28 people were later released.
The Baloch have never felt safe inside Balochistan and now they do not feel safe even outside Pakistan. The case of the disappearance of Rashid Hussain Baloch from the United Arab Emirates (UAE) in December 2018, and the recent discovery of the dead body of Sajid Hussain Baloch in Sweden after he went missing in March 2020, only serves to demonstrate that the Baloch rights activists are being trailed even when they have quit Pakistan and are meeting the same fate as their ethnic cousins back home. According to Baloch forums worldwide, Pakistan’s intelligence agencies are extending their influence and operations even in distant shores, especially in countries where the Baloch diaspora is actively propounding the case of Baloch marginalisation in Pakistan.
[2] Dr Nazir Ahmad Mir, ‘Abysmal Human Rights Situation in Balochistan’, Manohar Parrikar Institute for Defence Studies and Analyses, 30 May 2020. Accessed at:
The Pakistani authorities have been accused of systematically targeting Baloch activists (or those who are perceived to be activists). For example, a 2020 report from the United Nations Working Group on Enforced and Involuntary Disappearances stated that between 1980 and 2019, 731 individuals were deemed ‘missing’ in Balochistan and the Working Group had received 1144 cases of allegations of enforced disappearances.[3] On the issue of enforced disappearances in Pakistan, in 2020 the United Nations Human Rights Office of the High Commissioner (UNHCR) in 2020 stated:[4]
Pakistan has a long history of enforced disappearances, many of which have targeted human rights and minority defenders critical of the Government and the military, as well as persons suspected or accused of involvement in the opposition. While successive Governments have promised to criminalise enforced disappearance, none has taken concrete steps and the practice continues with impunity.
[3] International Commission of Jurists (‘ICJ’) 2020, ‘Entrenching Impunity, Denying Redress: The Commission of Inquiry on Enforced Disappearances in Pakistan A Briefing Paper’ Pakistan-Commission-of-Inquiry-Advocacy-Analysis-Brief-2020-ENG.pdf (icj.org) date accessed 3 June 2022.
[4] United Nations Human Rights Office of the High Commissioner (UNHCR), 2020, ‘Pakistan: UN experts appalled by the enforced disappearance of activist Idris Khattak’ Pakistan: UN experts appalled by the enforced disappearance of activist Idris Khattak | OHCHR accessed 3 June 2022.
I note that a 2011 Human Rights Watch report[5] stated:
Across Balochistan since January 2011, at least 150 people have been abducted and killed and their bodies abandoned - acts widely referred to as "kill and dump" operations, in which Pakistani security forces engaged in counterinsurgency operations may be responsible. Assailants have also carried out targeted killings of opposition leaders and activists. Human Rights Watch has extensively documented enforced disappearances by Pakistan's security forces in Balochistan, including several cases in which those "disappeared" have been found dead.
"The surge in unlawful killings of suspected militants and opposition figures in Balochistan has taken the brutality in the province to an unprecedented level," said Brad Adams, Asia director at Human Rights Watch. "The government should investigate all those responsible, especially in the military and Frontier Corps, and hold them accountable."
In the first 10 days of July, nine bullet-riddled bodies, several of them bearing marks of torture, were discovered in the province, Human Rights Watch said. On July 1, the body of Abdul Ghaffar Lango, a prominent Baloch nationalist activist, was found in an abandoned hotel in the town of Gadani, in the Lasbela district. The local police told the media that, "The body bore multiple marks of brutal torture." Lango had been abducted by men in civilian clothes in Karachi, in Sindh province, on December 11, 2009. When Lango's relatives tried to lodge a complaint about his abduction, the police refused to take it. An officer told the family that Lango had been detained because he was a BNP leader and that the "authorities" wanted to restrain him from participating in politics.
Hanif Baloch, an activist with the Baloch Students Organisation (Azad), was abducted from the town of Hub, Lasbela district, on July 4. His body was found in Mach, Bolan district on July 6, with three bullet wounds to his upper body. On the same day in Kech district, the bodies of Azam Mehrab, a resident of Tump, and Rahim, a resident of Mand, were found dumped in Juzak, on the outskirts of the town of Turbat. Both had been shot dead under unknown circumstances.
While Baloch nationalist leaders and activists have long been targeted by the Pakistani security forces, since the beginning of 2011, human rights activists and academics critical of the military have also been killed, Human Rights Watch said. Siddique Eido, a coordinator for the highly regarded nongovernmental organization Human Rights Commission of Pakistan (HRCP), was abducted with another man by men in security forces uniforms on December 21, 2010 from the town of Pasni in Gwadar district.
The bodies of both men, bearing marks of torture, were found in Ormara, Gwadar district, on April 28. HRCP said that "the degree of official inaction and callousness" in response to Eido's death amounted to "collusion" in his killing. Earlier, on March 1, an HRCP coordinator for the city of Khuzdar, Naeem Sabir district, was shot and killed by unknown assailants.
On June 1, Saba Dashtiyari, a professor at the University of Balochistan and an acclaimed Baloch writer and poet, was shot dead by unidentified gunmen in the provincial capital, Quetta. Dashtiyari had publicly backed the cause of an independent Balochistan.
"Even the cold-blooded killing of human rights defenders and academics has not moved the Pakistani government to seriously investigate, rein in, or hold the security forces to account in Balochistan," Adams said. "The government's failure to open a credible investigation into the killing of someone as prominent as Saba Dashtiyari only adds fuel to the fire of anger and suspicion in the province."
[5] Human Rights Watch, 2011, ‘Pakistan: Upsurge in Killings in Balochistan’ accessed 3 June 2022.
A separate report by Human Rights Watch[6] outlined the prominence of forced disappearances in Balochistan and the conduct of the Pakistani security forces with those who are suspected to have ties to the Baloch nationalist movement:
Those targeted for enforced disappearance were primarily Baloch nationalist activists or suspected Baloch militants. In several cases, people appeared to have been targeted because of their tribal affiliation, especially when a particular tribe, such as the Bugti or Mengal, was involved in fighting Pakistan’s armed forces.
Little information is available about what happens to people who are forcibly disappeared. Some have been held in unacknowledged detention in facilities run by the Frontier Corps and the intelligence agencies, such as at the Kuli camp, a military base in Quetta, the provincial capital of Balochistan.“Pakistani security services are brazenly disappearing, torturing, and often killing people because of suspected ties to the Baloch nationalist movement,” Adams said. “This is not counterinsurgency – it is barbarism and it needs to end now.”
The number of enforced disappearances by Pakistan’s security forces in recent years remains unknown, Human Rights Watch said. Figures provided by senior officials are grossly inconsistent, and these officials have provided no explanation about how they were reached. In 2008, Interior Minister Rehman Malik said there had been at least 1,100 victims of these disappearances in Balochistan.In January 2011, Balochistan’s home minister, Mir Zafrullah Zehri, told provincial legislators that only 55 people were considered missing.
There is increasing evidence to suggest that many of the “disappeared” have been extrajudicially executed while in government custody. Human Rights Watch has recently reported on the killing of at least 150 people across Balochistan since January in acts widely referred to as “kill and dump” operations for which Pakistani security forces may be responsible. Assailants have also carried out targeted killings of opposition leaders and activists.
[6] Human Rights Watch, 2011, ‘Pakistan: Security Forces ‘Disappear’ Opponents in Balochistan’ accessed 3 June 2022.
A United States Department of State report[7] on the human rights situation in Pakistan also noted the prevalence of both illegal detention and numerous cases of missing persons related to Baloch activists who were deemed to have ‘anti-state’ opinions:
Despite the amnesty offers, illegal detention of Baloch leaders and the disappearance of private Baloch citizens continued. On June 28, Balochistan Province Home Minister Mir Ziaullah Langove claimed that as many as 200 missing persons had returned to their homes in the province since January. The NGO Voice for Baloch Missing Persons, however, could only confirm 100 persons had returned home between January and June. In July, reports indicated 12 more missing persons returned to their homes in various areas of Balochistan, although the practice of disappearing persons for political dissent continued, with some contacts noting it had escalated across the province.
[7] United States Department of State, 2019 ‘2019 Country Reports on Human Rights Practices: Pakistan’ accessed 3 June 2022.
The same United States Department of State report outlined the increased military presence and unsolicited raids on those with suspected links to the separatist movement in Balochistan:[8]
Law enforcement agencies also acted to weaken terrorist groups, arresting suspected terrorists and gang members who allegedly provided logistical support to militants. In raids throughout the country, police confiscated caches of weapons, suicide vests, and planning materials. Police expanded their presence into formerly ungoverned areas, particularly in Balochistan, where military operations have become normal although such operations often go unreported in the press.
Poor security, intimidation by both security forces and militants, and control by government and security forces over limiting access to nonresidents to Balochistan and the former FATA impeded the efforts of human rights organizations to provide relief to victims of military abuses and of journalists to report on any such abuses.
[8] Ibid.
Country information suggests that Baloch activists may have been targeted and even killed while abroad. For example, in 2020, as reported by numerous news sources,[9] Karima Baloch who was an activist and the first female head of the Baloch Students’ Organisation was found dead in a river in Toronto, Canada. Further, her family (including her two uncles, brother, mother and were all found dead). According to reports, her family were all linked to the Baloch independence movement.
[9] British Broadcasting Corporation, 2020, ‘Karima Baloch: Pakistani rights activist found dead in Toronto’, The Guardian, 2020, ‘Karima Baloch, Pakistani human rights activist, found dead in Canada’; The Wire India, 2021, ‘Pakistan: Family of Baloch Activist who Died in Canada Claim Harassment by Authorities’, accessed 3 June 2022.
This series of incidents followed the death of Sajid Hussain Baloch also in 2020, who was the editor in chief of the Balochistan Times. Mr Hussain was found dead in a river in Uppsala, Sweden. As reported by Deutsche Weller, Mr Hussain had settled in Sweden after leaving Pakistan where he worked as a journalist covering the conflict in Balochistan.[10]
[10] Deutsche Weller, ‘Sajid Hussain Baloch: Missing Pakistani journalist found dead in Sweden’ Sajid Hussain Baloch: Missing Pakistani journalist found dead in Sweden | News | DW | 02.05.2020 accessed 3 June 2022.
In a 2020 article, the Manohar Parrikar Institute for Defence Studies and Analyses,[11] an Indian think tank, highlighted Mr Hussain’s case:
Sajid Hussain Baloch had fled Balochistan in September 2012 after he was targeted by the Pakistani establishment for investigating disappearances of the Baloch people. According to reports, some unknown persons broke into his house in Quetta and decamped with his laptop. After passing through different countries to save his life, fate brought Sajid to Sweden in 2018. He was granted asylum in 2019. He ran an online newspaper, ‘Balochistan Times’, which sought to raise awareness about Baloch sufferings and lend a voice to the voiceless. On March 2, Sajid boarded a train from Stockholm to Uppsala where he was supposed to check into a new flat. According to Reporters Sans Frontiers (RSF), he was to collect the keys to his new flat but he did not get off the train in Uppsala. On April 23, Sajid’s body was found in the Fyris River outside Uppsala. The police spokesperson said that the death could be due to an accident or suicide while not ruling out crime. President of the Swedish chapter of RSF, Erik Halkjaer, said that Sajid’s “disappearance might be work related”. Observers suspect that he may be a victim of targeted killing as many activists and bloggers of Pakistani origins in Europe claim to be “targeted for speaking up against human rights violations in Pakistan.
[11] N Mir, Manohar Parrikar Institute for Defence Studies and Analyses, 2020, ‘Abysmal Human Rights Situation in Balochistan’ Abysmal Human Rights Situation in Balochistan | Manohar Parrikar Institute for Defence Studies and Analyses (idsa.in), accessed 3 June 2022.
Findings and reasons
I accept that [the applicant] is a Sunni Muslim man of Baloch ethnicity (who is from the [Name] Tribe) who was born and raised in Quetta, Balochistan Province, Pakistan. I accept that [the applicant] was an active supporter of the Balochistan independence movement, particularly through his involvement in, and membership of, the BSO organisation both while living in Pakistan and during his time in Australia. I accept that [the applicant] has engaged in small, but sincere and legitimate, political protests in support of Balochistan independence while in Australia and that these protests have been the subject of online news coverage. Considering the totality of the evidence provided, including information and documents on the Department’s file, and new information provided to the Tribunal, I accept that [the applicant] was targeted by members of Pakistan’s security forces because of his (and his family’s) affiliation with and involvement in the BSO organisation in particular and the Baloch independence movement more broadly, including a raid on his family home in Pakistan in 2015.

I held some concerns regarding some of the evidence presented by [the applicant] in relation to his case and claims, including relating to specific claimed incidents of past threats/harm, [the applicant]’s profile in his home area, how this profile may have increased during his time away from Pakistan, and why there had been a delay in him lodging his protection visa application after arriving in Australia. I discussed these and other concerns with [the applicant] at the hearing and I’m satisfied with the responses provided. I accept that [the applicant] was threatened by members of Pakistan’s security services, which included a raid on his family home in 2015, and I also accept (based on country information mentioned above) that many instances of human rights abuses have occurred during the period in question related to the Balochistan independence movement and those involved with it.
Having considered the available country information and [the applicant]’s specific circumstances, particularly (as detailed above) the information relating to human rights abuses which have occurred during the period in question related to the Balochistan independence movement and those involved with it, I am satisfied that in these circumstances [the applicant] would face a real chance of serious harm from the Pakistan government – including agents acting on their behalf – if he were to return to his home area of Balochistan for reasons relating to his (actual or imputed) political opinions, namely that of people who hold pro-separatist and/or anti-Pakistan government beliefs and/or because of his (and his family’s) association with the BSO political movement in Pakistan, as required by s 5J(4)(b) of the Act, in that it would involve a threat to his life or liberty or significant physical harassment or ill-treatment. I also consider that [the applicant]’s (actual or imputed) political opinions are the essential and significant reason for the persecution he fears, as required by s 5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it would be deliberate or intentional and involve his selective harassment for reasons of his (actual or imputed) political opinions. Therefore I am satisfied [the applicant]’s fear of persecution in Pakistan is well-founded, and that [the applicant] is a refugee as defined by s 5H of the Act.
Pursuant to s 5J(6), I am satisfied that the reasons [the applicant] faces a well-founded fear of persecution relate to behaviours and/or conduct that was not engaged in by [the applicant] in Australia for the purpose of strengthening his claim to be a refugee.
Having considered the available country information and [the applicant]’s particular circumstances, I am not satisfied the State is willing to offer effective protection measures to [the applicant], nor am I satisfied [the applicant] would be able to access effective protection measures if he returned to Pakistan now or in the reasonably foreseeable future.
I am satisfied that [the applicant], as a citizen of Pakistan, has the right to relocate within Pakistan. I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[12]
[12] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at [443]; per Whitlam J at [453]
In considering [the applicant]’s circumstances and the ‘reasonableness’ of him relocating within Pakistan, I have considered advice in the DFAT Country Information Report, and additional country information about the current political and security situation in Pakistan. I have also had regard to oral and written evidence provided by [the applicant]. that he has previously attempted to relocate to other areas of Pakistan but felt that he had been followed there. I note and accept medical evidence before the Tribunal that [the applicant] suffers from a series of serious medical conditions, including related to a heart attack and mental health issues. I accept submissions made by [the applicant]’s representative that these medical conditions would limit the range of possible places that [the applicant] could relocate to within Pakistan.
Having considered all of the available country information, I do not consider it would be reasonable to expect [the applicant] to relocate himself to another part of Pakistan where he has no family or social supports to escape the real chance of serious harm he faces in his home area of Balochistan.
Considering [the applicant]’s particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that he will suffer persecution involving serious harm, from the Pakistan authorities and/or their agents and/or affiliated groups, if he returned to his home in Balochistan province, Pakistan. I am satisfied that the real chance of serious harm [the applicant] will face if he returned to his home area will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find that the essential and significant reason for the serious harm [the applicant] faces is his (actual or imputed) political opinions, namely that of people who hold pro-separatist, and/or anti-Pakistan government beliefs and/or support Baloch independence, and because of his (and his family’s) association with the [political movement] in Pakistan.
I find that [the applicant] does not have the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act and therefore find that this section does not apply in his case.
For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Scott Clarey
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2331

8 June 2022

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