1421020 (Refugee)

[2016] AATA 3664

1421020 (Refugee) [2016] AATA 3664 (5 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421020

COUNTRY OF REFERENCE:                  India

MEMBER:Chris Thwaites

DATE:5 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 05 April 2016 at 7:43am

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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act)[1].

   [1] The relevant law is attached to the Statement of Decision and Reasons

2. The applicants applied for the visas on [date] October 2013, and the delegate refused to grant the visas on [date] November 2014.

3. On [date] December 2014 the applicants applied to the Tribunal for review of that decision

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s file relating to the applicants’ protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provided to the Tribunal by the applicants.

5. The visa application forms indicate the first named applicant applied for a protection visa making his own claims for protection, and the second named applicant was included in the application as a member of the same family unit who does not have her own claims for protection. The applicants also provided a copy of the third named applicant’s birth certificate to the Department. That birth certificate indicates the first named applicant and the second named applicant are the parents of the third named applicant, who was born on [date]. As the third named applicant was born after the protection visa application was lodged, [the child] is deemed to be an applicant for a protection visa under r.2.08.

6. The second named applicant has not made any claims of her own for protection and no claims have been advances on behalf of the third named applicant, therefore the Tribunal has proceeded to assess them as members of the same family unit who do not have their own claims for protection.

7. The first named applicant’s written reasons for claiming protection are contained in his visa application forms and a statutory declaration dated [in] September 2013. In the visa application forms the first named applicant (the applicant) states he was persecuted for his political opinion and now fears for his life. He states that if he returned to India he fears he will be harmed. He indicates that he has experienced harm in his country and refers to his statutory declaration. He states he fears he will be harmed and likely killed for his political opinion. He thinks political parties may harm or mistreat him if he goes back to India because of his previous involvement in political parties. He indicates he does not think the authorities of India can and will protect him if he goes back because they (the authorities) support the political parties that oppose him.

8. In his statutory declaration the applicant states he is a citizen of India and does not have a right to citizenship or right to reside in any other country. He states he is Indian and Hindu and was born in [year]. The applicant declares that he fears returning to India, and summarises the partition of India in 1947 into Pakistani and India, and the emergence of different political groups, the Khalistan Liberation Force (KLF) who was involved in attempting to create a Sikh only State, and opposing political groups who were against the creation of the Sikh only State, the Sheve Sana Party and Hindu Dharam Party. Violence erupted over the years including assassinations such as that of Indra Ghandi in 1984. The applicant declares that the whole state of Punjab was affected by terrorism due to the fighting of political parties. This violence continued until the time the applicant decided to leave his home state of Punjab and India because of what was happening around him. The applicant declares his father was involved in the Sheve Sana Party but left to due to the continuing violence between the parties. His father often had to hide because he feared being harmed or killed by the fighting.

9. The applicant declares that before he left India he feared being harmed by the continuing fighting between the political parties and also feared that his home state Punjab would be taken over by the Sikh controlled parties. The applicant declares he fears being harmed by the Sikh controlled political parties. He declares the religious people in the Sikh community have targeted Hindus with many killed and injured. The Sikhs often use burning people as a threat. The applicant declares that he fears that as a Hindu this may eventually happen to him if he returned to India. He strongly believes that his fears of being injured or killed (by burning) are related to him being of the Hindu religion, but also politically motivated because of the influence of the political parties such as the KLF. The applicant believes that if he returns to India he would be at a real risk of facing serious harm by members of the KLF who belong to the Sikh caste and are long term enemies of the Hindu caste. The applicant declares they wish to change Punjab, the applicant’s home, into a state (Khalistan) for only people belonging to the Sikh caste. The applicant fears these people because they have been involved in instigating violence for many years. He fears if he returns he will be harmed and possibly killed due to this violence.

10. The applicant declares that most of the authorities that deal with security matters belong to the Sikh caste. They are unlikely to protect people such as the applicant who belongs to the Hindu caste. Sikhs have discriminated against the Hindu people from many years. It would be dangerous to expect security from those that hate Hindus. The applicant declares that although large-scale military activity towards a separate Sikh state may be fading, there continues to be fears in his community of a resurgence of the Sikh militant violence in the Punjab, with police arresting many suspects involved with violence.

11. The applicant declares that he was born in Punjab, and his family still lives in Punjab, albeit with similar fears to the applicant. To relocate to another area would not eliminate his fear of being harmed. The Hindu/Sikh problems exist in other parts of India. Relocation would not be a safe option.

12. The delegate’s decision record indicates the applicant attended an interview with the delegate on [date] June 2014 and reiterated the same claims as his written claims. According to the delegates’ decision record, during the interview, the applicant clarified the schools he had attended and stated he attended a [Christian] primary school. He also confirmed that he knew English, Hindu and Punjabi. He stated he had a [sibling] [name]. When asked how the applicant practiced his Hindu religion in India, the applicant told the delegate he attended the nearby Temple every few days to do meditation. When asked how he practices his religion in Australia, the applicant told the delegate he attended his de facto wife’s [ethnic] church or the Catholic Church in [town] and attended festivals. He said his de facto wife runs a [business] in [town]. The applicant told the delegate that he and his de facto wife plan to marry in the next three months and that his [child] was going to be baptised in the Catholic Church in the next few months as well.

13. According to the delegate’s decision record, the delegate accepted the applicant’s religion was Hindu and Catholic. The delegate also found the applicant’s family in India had not moved their residential address in the last 20 years. The delegate accepted the applicant had a subjective fear of being harmed by Sikh controlled political parties and that he fears the KLF. The delegate also accepted the applicant had a subjective fear that he could not obtain protection from the authorities. The delegate did not accept the applicant and his family were in fear of his father’s previous involvements in the Sheve Sana Party as they had lived in the same address the last 20 years and the family business had the family name. The delegate did not accept the applicant’s [child], the third name applicant, was an Australian citizen.

14. According to the delegate’s decision record, after analysing a number of country information reports, the delegate concluded the applicant does not have a political profile that would single him out for attention of non-state actors. The delegate also concluded the applicant had not provided any information that he had been affected by Sikh controlled political parties or the KLF. On the basis of the country information referred to, the delegate was of the view the applicant would not be denied State protection for a Convention reason.

15. While accepting the applicant would strongly prefer to live in Australia with his family, where he will experience a better quality of life, the delegate also noted the second named applicant was a [Country A] citizen holding a [class] visa, and his [child], the third named applicant, is potentially able to hold a similar visa on presentation of [the child’s ] [Country A] passport. The delegate found the applicant’s preference was not, however, related to the Refugee Convention and did not contribute to a well-founded fear of persecution in India.

16. The delegate noted the applicant also claimed that he may have difficulty earning an adequate living in India, and whilst the delegate was sympathetic to these difficulties, the delegate noted the concerns were economic in nature and did not contribute to a well-founded fear of persecution that would warrant the grant of a protection visa in Australia.

17. The delegate found the applicant had not been subjected to violence and has not come to the attention of any groups in India. The delegate found that there was not a real chance that the applicant would be persecuted for a Convention reason if he returned to India. Therefore the delegate was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason, and therefore found the applicant’s fear was not well founded.

18. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention and therefore the applicant did not meet the criteria in s.36(2)(a). The delegate also found that, in absence of credible evidence that the applicant may face significant harm in India, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real chance he would suffer significant harm. Therefore the delegate was not satisfied the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa). The delegate therefore refused to grant the applicant a protection visa, and consequently refused the application for a protection visa for the second and third named applicants, who were members of the same family unit included in the application.

19. As noted above, on [date] December 2014 the applicants applied to the Tribunal for review of that decision.

20. On 23 December 2015 the Tribunal wrote to the applicants, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 23 March 2016. On 16 March 2016 the applicants’ representative advised the Tribunal that the applicants had instructed them to request the matter be decided on the paper. The representative later clarified the applicants were declining the invitation to attend the hearing and consenting for the Tribunal to decide the review without them appearing before it. This matter has therefore been determined on the evidence available to the Tribunal.

    FINDINGS AND REASONS

    Country of nationality

21. The visa application forms indicate the first named applicant claims to be a citizen of India. The first named applicant also provided a copy of his Indian passport to the Department.  Based on the copy of his Indian passport, the Tribunal finds the first named applicant is a national of India. The Tribunal also finds India is the first named applicants “receiving country” for the purposes of s.36(2)(aa).

22. The visa application forms indicate the second named applicant claims to be a citizen of [Country A]. Departmental records indicate the second named applicant arrived in Australia on [date] December 2004 and holds a [class] visa. She is not an eligible [Country A] citizen as she was not in Australia before [date]. Based on this information the Tribunal finds the second named applicant is a national of [Country A] and [Country A] is the second named applicant’s “receiving country” for the purposes of s.36(2)(aa).

23. The Tribunal notes the first named applicant claimed at interview with the delegate that his [child] was an Australian citizen. Nevertheless, departmental records indicate the first named applicant is not an Australian citizen or permanent resident, and the second named applicant is a citizen of [Country A] and holds a temporary [visa], and is not an eligible [country] citizen as she was not in Australia before [date]. Given the citizenship and immigration status of [child’s] parents, the third named applicant is not an Australian citizen or permanent resident. As the third named applicant’s mother is a [Country A] citizen, [child] is [a Country A] citizen by decent[2], and a national of [Country A] and therefore [Country A] is the third named applicant’s “receiving country” for the purposes of s.36(2)(aa).

    [2] [Information deleted]

    Refugee criterion: s.36(2)(a)

24. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

25. While the applicant’s written statements in relation to the general political history of the Sikh separatist movement in India and the Punjab are consistent with the country information referred to in the delegates decision record, the applicant’s specific claims in relation to his family and himself are unsubstantiated and without further detail amount to mere assertions. If the applicant had attended the hearing, the Tribunal would have had the opportunity to discuss his claims with him in more detail and test their veracity.

26. If the applicant had attended the hearing the Tribunal would have discussed with him how he was persecuted for his political opinion and why he now fears for his life if he returns to India. The Tribunal would have asked the applicant about his father’s involvement in the Sheve Sana Party, and why he left due to the continuing violence between the parties, and when and why his father had to hide because of his fear of being harmed or killed in the fighting. The Tribunal would have asked the applicant what his political opinion was and whether he had any connection with a political party in India, apart from his relationship with his father. The Tribunal would have asked the applicant if he had undertaken any political activity while he was in India. The Tribunal would have asked the applicant about his experience of the fighting between political parties and why he feared returning to India on the basis of his political opinion. The Tribunal would also have asked the applicant if he had experienced any harm due to his religion in India, and why he feared being harmed by Sikh controlled political parties. The Tribunal would have asked the applicant why fears being harmed in India because he is a Hindu. The Tribunal would also have asked the applicant why he left India, and about any other fears he has of returning to India. The Tribunal would also have asked the applicant why he could not relocate in India, away from Punjab.

27. The Tribunal notes the delegate’s decision record, which the applicant provided to the Tribunal, indicates the applicant told the delegate he had not been a member of a political party and had little knowledge of the Sheva Sana Party, and that his family had lived at the same address for the last 20 years. The delegate also noted the applicant did not state he had been subjected to any violence himself, and the delegate concluded he had a fear of harm due to reports in the media and not based on his own experience.

28. The delegate’s decision record also indicates country information was put to the applicant which indicated that while there were a few groups continuing to fight, the separatist movement had lost its popular support, and the present situation in Punjab was generally regarded as peaceful, with the militant Khalistan movement weakened considerably.

29. The delegate’s decision record also indicates it was put to the applicant that Hindus were 36% of the population in Punjab, and that the Punjab police had over 30,000 members, and that the applicant had not provided a reason why he would be refused State protection.

30. If the applicants had attended the hearing the Tribunal would have discussed this country information with them.

31. The letter inviting the applicants to the hearing put the applicants on notice that the Tribunal had considered all the material before it and was unable to make a favourable decision on that information alone. Nevertheless, the applicants declined the invitation to attend the hearing.

32. The evidence before the Tribunal is not sufficiently detailed for it to be satisfied about the claims made.  On the evidence before it, the Tribunal is not satisfied the first named applicant’s father was involved in the Sheve Sana Party, or had to hide because he feared being harmed or killed by the fighting. The Tribunal is not satisfied the applicant or his family in India experienced serious harm, or harm of any kind, due to the applicant’s father’s political opinion or activity or their own political opinion or activity or implied political opinion. The Tribunal is also not satisfied the applicant or his family in India experienced serious harm or harm of any kind due to their religion or religious practices.

33. On the evidence before it, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm, or harm of any kind, due to his political opinion or implied political opinion, or religion or religious practices, if the applicant was returned to India now or in the reasonably foreseeable future.

34. On the information before it, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm, or harm of any kind, from the Sikh controlled political parties, if he returned to India now or in the reasonably foreseeable future.

1. On the information before it, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm, or harm of any kind, from the Sikh community, if he returned to India now or in the reasonably foreseeable future.

2. On the information before it, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm, or harm of any kind, from members of the KLF, if the applicant returned to India now or in the reasonably foreseeable future.

3. On the information before it, the Tribunal is not satisfied there is a real chance the applicant will be injured, or killed, or suffer serious harm, or harm of any kind, due to political or religious violence, if the applicant returned to India now or in the reasonably foreseeable future.

4. On the information before it, the Tribunal is not satisfied there is a real chance the applicant would be unable to earn a living or that he will be discriminated against and not be able to access protection from the State authorities, if the applicant returned to India now or in the reasonably foreseeable future.

5. Having considered the applicant’s claims individually and cumulatively, on the information before it, the Tribunal is not satisfied there is a real chance  the applicant will suffer serious harm, or harm of any kind, for any of the reasons he has claimed. Therefore the Tribunal finds the applicant does not have a well-founded fear of persecution.

6. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the first named applicant does not satisfy the criterion set out in s.36(2)(a).

   Complementary protection criterion: s.36(2)(aa)

7. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he nevertheless meets the criteria for the grant of a protection visa pursuant to the complementary protection criteria.

8. For the reasons given above, on the evidence before it, the Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm, or harm of any kind, if returned to India.

9. On the information before it, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm from Sikh controlled political parties, or the Sikh community,  or  members of the KLF, or that he will be injured, or killed, or suffer significant harm or harm of any kind, due to political or religious violence. The Tribunal is not satisfied there is a real risk the applicant will be discriminated against and not be able to access protection from the State authorities.

10. Having considered the applicant’s claims individually and cumulatively, on the information before it, the Tribunal is not satisfied there is a real risk the applicant will be discriminated against or that he will be unable to find employment, or that he will be injured, or killed, or suffer significant harm, or harm of any kind, for any of the reasons he has claimed.

11. On the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if returned to India.

12. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    CONCLUSION

13. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a  person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa).

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

15. Consequently the other applicants do not satisfy s.36(2)(b)(i) or s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    DECISION

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

    Chris Thwaites
    Member  5 April 2016

    
    

    RELEVANT LAW

17. 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.

    Refugee criterion

18. 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).

19. 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.

20. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

21. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

22. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

23. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

24. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

25. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

26. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

27. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

28. 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’).

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

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

    Section 499 Ministerial Direction

31. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

32. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations.