1421220 (Refugee)

[2015] AATA 3769

1421220 (Refugee) [2015] AATA 3769 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421220

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Glen Cranwell

DATE:17 November 2015

PLACE OF DECISION:  Brisbane

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 17 November 2015 at 2:33pm

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).

2. The applicants who claim to be citizens of Pakistan, applied for the visas [in] July 2014 and the delegate refused to grant the visas [in] December 2014.

3. The applicants appeared before the Tribunal on 17 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   RELEVANT LAW

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicants claim to be Pakistani nationals.  In the absence of evidence to the contrary, the Tribunal finds that Pakistan is their country of nationality for the purposes of the Convention and also their receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

11. The first named applicant’s (the applicant) claims are conveniently summarised in his statutory declaration dated 10 November 2015:

    I am currently [age] years of age, being born on the [date].

    I make this Statutory Declaration in support of my application for the review of decision by a delegate of the Department of Immigration and Border Protection (DIBP) to refuse a Protection Class XA Visa. The decision was made on [date] December 2014,

    I am a practicing, educated and a well-known Shia Muslim belonging to a reputable family in Pakistan. My family businesses have representation all across the country in the shape of [Company 1] - Representatives [Company 2] incorporated as early as [year] and [another company].

    Manufacturing established in [year]. Both of these are nationally known business entities [Company 1] have mostly done sizeable quantities of trade with [a corporation in Pakistan].

    As a successful Shia Muslim with an [overseas] Company representation and being a well-known [person] alongside serving an advisor in [a government department], sets my profile nationwide and these may easily be evidenced, from the documentation previously provided and also the documentation accompanying this application.

    Further to my personal and family businesses, my [consultant] side work profile instills a colossal working experience throughout Pakistan, fore mostly, in the shape of [company names] ([details of businesses deleted]) and others where I have worked at [senior] - level positions. These above companies I have served have nationwide [operations].

    The fact that I have represented offices in all major cities of Pakistan with provided proof that my visiting card carries the addresses of all such offices is attached for reference, and this is an important fact that should be taken into consideration.

    My teaching experience is widely spread out in all major campuses in the shape of [tertiary institutions] and this also highlights the significant fact that I have had some [number] plus student following and consequently, considerable teaching experience. My teaching expertise is, but not limited too includes the course of [details deleted].

    I have an established writing history famous in the entire Pakistan as I have many publications printed to my name and distributed in the entire Pakistan. Even the offices of one of my main publications in the shape of [magazine] is located in Islamabad Rawalpindi and Karachi, the previous which; in fact, is a twin city managed and controlled by the law enforcement agencies as one. It is also crucial to highlight that though Islamabad was considered safe to relocate me, little more then 2 months after my decision a massive bomb blast on the 19th Feb 2015 blew the Islamabad Shia Imambargah. Hence posing a big question mark on the safety and security of the entire country since and if a federal Capital is not safe then I beg to differ that no other place will be for the Shia Muslims and I must emphasis more so for me as my family and I are actively pursued and targeted.

    My education background includes schooling achieving [level] standards from [school] and then [school]. I followed that up with a [tertiary qualification] program from [name] in the year [year] and [year]. The [Ex-Prime Minister] of Pakistan Benazir Bhutto [personally] signed my degree. She too was a Shia Muslim who also got assassinated in Islamabad / Rawalpindi by the Talibans on the 27 December 2007.

    I belong to a respectable family of Shia Muslims who inculcated a sense of Shia religious obligations, hard work and courteous regard for other religions; be it the Hindus, Christians or Sunni Muslims, in me. However I soon realized growing up that this was a scarce sentiment as many people in Pakistan think completely opposite to that and just wanted to impose what they thought was right, so much that they the could actually declare other faith and beliefs, blasphemous and infidel (Kafirs) who should be subject to be cleansed from country Pakistan as the term means "Country for the Clean" and as the vast majority is of Sunni Muslims all the other faith were unclean and it is considered rewarding to get rid of them. I can assure that this is scary to know as growing up and being educated in school with the vast majority who do not approve of your Shia faith.

    My biological [father] expired as early as my child hood days and I knew very little of him and my biological [mother] who is a hardworking woman but very old and fragile now, moved from city to city then, and because of that my aunt [mother] brought me up. I have [relatives]. We all lived in the same residence of house [address] Karachi, until these unfortunate events. My [relative] [name] moved to Australia and lives here with her husband and [children], my [other relative] moved to [country] and lives with her Husband and [children] and my [other relative] who initially moved to Lahore after the threats but since the death threats did not stop he has also seeked [country] as his wife is a [country] national.

    I became married [in] 2005 to [name] who is [occupation] by profession but now has debilitated physical health due to her recentpregnancy and birth of our [baby] in Australia given our refused refugee status and lack of proper means to cover all medicinal and other life survival requirements comprehensively.

    I have [children] and [one child] was born in Australia. I refer to the Birth Certificate accompanying documentation.

    My family and I have realized to appreciate deeply the things that otherwise normal families may take for granted; such as kids playing outside homes or going to school without any fear of death or kidnapping or the sole bread earner the father/ husband being persecuted for following certain religious beliefs or doing well for his family facing extortion; failure to comply, highly susceptible to being shot or blown to pieces. These are not exaggerated thoughts by any means. Those who have been through all that can only understand it. My wife and children, and I know exactly what it means because we have gone through all that.

    It all started for me by being called names in schools by my fellow class mates first obviously that they have been told from their homes and so on. Making friends becomes even tough, as the parents will not approve of having a Shia infidel around their kids, and rest assured this was the case with them when they were growing up. Names such as Kafirs (infidel), Khattmal (insect) is what my ears got used to.

    Further when you go out to search a job or business contact it is also double hard to get it right the first time. Hence I always found it extremely hard to secure work in life and had to work far more then others to prove my worth.

    All the above is still bearable but as soon as you start getting targeted and attacked for being a Shia Muslim that is when you start becoming nervous. There are many banned outfit militants who consider killing Shia Muslims as rewarding and they are highly skilled in what they do, and that is to terrorize and exterminate Shia Mulims at will in compared to a our law enforcement agencies which are neither skilled nor very honest as corruption has seeped to the backbone. Further after the Zerb-e-a Asb initiation as of 15 June 2014 Pakistan has entered into a Civil War, and this puts all of us at great risk for even the law enforcement agencies are targeted.

    I VERILY BELIEVE that 1 was fortunate to survive a bomb blast [in]

    
    

    March 2013 at [location] in Karachi, Pakistan. This was planned [blast] and is extremely unpleasant every time I have to recall. Surviving a blast like this is not possible and I consider myself extremely fortunate. I do not have words to describe the horrors, but I can state this that after that incident I never was able to go to a Shia Mosque in Pakistan.

    Then [in] July 2013 [a relative] was shot dead in our Lahore factory site. He received multiple threat letters synonymous to mine from anti Shia militants and because of that very reason he has relocated to Lahore from Karachi his principal residence, but the wide reach of these militants got to him. He never had a chance.

    Soon after the above incidents mentioned I started seeking psychiatric help as being a Shia Muslim had taken a toll over me and I started to find it difficult to cope with routine tasks and moving place to place. I refer to the Reports from Clinical [Psychologist] dated [in] August 2015 and [a doctor] dated [in] October 2015.

    [In] Dec 2013 when I left for work with my [driver] in my family [car] I was violently stopped some few Kilometers from the toll at [location] a predominately Pakhtoon area of many Sunni Muslims. These people asked for my wallet and since I really was rushed for work that day I had left my wallet at home. These people wanted to check my identity for being a Shia Muslim as it can very well be verified from the National Identity Card and Shia name. My driver who I am very grateful to as of today and my entire family is indebted to him for saving my life, stepped in conversation in some Pushto dialect with them and explained that I was not a Shia Muslim and my name was [name]. I was then asked to join in the war

    
    

    against Shia Muslims.

    Even more traumatizing were the threat letters that were received on multiple places in Pakistan for me threatening my family and me, A threat letter dated [in] December 2013 received at my [house] was hand delivered with a bullet stating in a nutshell that they will kill me as I am Shia and successful and demanded me to change and pay them stable monthly amount if desired to live.  These letters are available on the Department of Immigration file and a threat letter received recently has been made available in the accompanying documentation. Documentation.

    I was very frightened but did not respond much to it initially and discussed

    
    

    this with close family and friends a my cousin was already facing that.

    [In] January 2014 evening hours as I left from office in my [car] alone in my car I was fired upon one of the bullets lodged into the windscreen and into top of the steering wheel. I can never take that face out of my eyes the bearded guy who just expressionlessly decided to end my life that day.

    After that incident I kept low, mentally I was not able to cope. My family and I in consensus moved and relocated to another [house] also in Karachi. The threat. letters, however never stopped and .1 received another threatenin2 letter on the [date] January 2014 stating that I was lucky to survive the shooting and that I had to pay more.

    Relocation did not save me and as [in] May 2014 at about 7:45 am when I was trying to drop my [child] in one of my Company's listed [car] to school two motor bikes with two individuals mounted on each showed me the gun and asked me to stop at least five minutes away from my place of residence at [location]. I had clearly recognized the guy with the beard who had taken a shot at me the first time and hence knew that my son and can never be safe. So I took the risk and stepped on the gas to escape quickly. It was very scary but I survived yet again.

    After that I had realized I can never be safe, I decided to leave everything and come to Australia.

    There have been many more threat letters from the same people, actively seeking my family and me so they can make an example out of me. After all these people market themselves on fear and will go to any distance to get to me, If I go back to Pakistan together with my family I VERILY BELIEVE that we will be walking towards our deathbeds.

    I can never be sure who is exactly after my family and me as there are many banned military outfits that want to exterminate Shia Muslims. It can be the Talibans, Sipha-Shaba, Tafkiri Terrorists ASWJ, Deobandis, or in between political party groups, but I can assure the end result will be the death of myself and my family members,

    I VERILY BELIEVE that the police in Pakistan can never protect me, as I have been to the police many times and they did not take it seriously and made frivolous and sarcastic comments. Even after multiple reporting's they were unable to investigate the matters comprehensively. I even approached the Higher Departments [of] Pakistan and even then they stated the difficulty to counter the extremist group pursuing my family and me, Pakistan Police is not skillfully trained to do that, and these military outfits are professionals and have a strong funding. Further the corruption in the police department is a widespread issue. In one of the threat letters they also claimed to have allies in the police and I can believe that. Also more importantly right now the police and others are being a targeted by the same banned military outfits due to the operation Zarb Asb as mentioned earlier, More importantly the extremists just have to get it right only one time and that can very well be the end of my family and myself. This is more evidently pointed out by [an officer] of Police [of] Pakistan who has also advised my family and me to stay away from relocation in any part in Pakistan. I refer to the Statement from [that officer] dated [September] 2015 and included with the documentation.

    I VERILY BELIEVE that the Delegate who initially assessed the matter, considered me to be a credible witness and agrees that I would be persecuted if I returned to Karachi on the basis of my profile. This has highlighted that Shia Muslims are subject to attacks but my personal circumstances and distinct national profile pose an additional risk as I have been targeted previously and always will be.

    My unique profile of being a Shia Muslim and representing an [overseas] Company will always highlight me anywhere in Pakistan. It is also significant to comprehend that my work requires me to stay in constant contact with ports operations and the only ports are in Karachi,

    Further National Identity Cards and Documents will always highlight me as a Shia Muslim.

    Australia is where my family and I can be safe as there are no bomb blasts and firings, and we will not be targeted. I have worked from [location] easily and imported and sold some containers and I can continue to do so. The only Ports in Karachi will always be dangerous for me to access.

    At this age I cannot change my profession and further have [children] to look after. I am financially crunched due to my sudden country displacement, but if sent back I will end up broke with no means to support my family as I have moved and bought a house here to give my children another chance at life and still able to make a living due to port presence in [city] and safe access to it and this aids me to put food on the table.

    Concluding I must earnestly urge and plead that serious thought is put into this matter, before sending me and my family to our death beds in Pakistan. VERILY BELIEVE that this may very well be our last chance and of hope. still am actively receiving death threats in Pakistan and a translated letter has been provided.

    I have compromised everything for the safety and security of my family and myself. I was surely doing well financially and would not have taken this desperate stance to secure the life of myself and my family, if it were not for this dire situation. Please bear in mind that I am already am lucky to state all this to begin with and I may not get another opportunity; my three little children deserve a chance to live. We cannot return to Pakistan for all the above reasons stated I just cannot lock my kids and myself in Islamabad or anywhere else awaiting our deaths. A family needs to have a sense of safety and security first and foremost.

    I WOULD EARNESTLY REQUEST the Member set aside the decision to refuse the Visa [and] remit the matter back to the DIBP for further consideration and ultimately that the visas be granted to myself and my family members.

1. The delegate made the following findings in respect of the applicant’s claims:

   ·The applicant is a practicing Shi'a Muslim of Punjabi ethnicity, and a citizen of Pakistan.

   ·The applicant and his family own numerous properties in Karachi as well as Lahore.

   ·The applicant's mother is planning to return to Pakistan from Australia in December 2014 and will move into a new residence being set up for her in Lahore.

   ·The applicant is a successful businessman, and is currently employed by an [overseas] company named [Company 2]. He is also continuing his work with the business from Australia.

   ·The applicant wrote paid, opinion pieces for a number of Pakistani [magazines/ papers] in the past (including the [magazine]) from [year] to [year].

   ·The applicant and his family were living an affluent lifestyle in Karachi and own a number of properties in both Karachi and Lahore.

   ·The applicant's [car] was fired upon as he left his workplace on the night of [date] January 2014, with one bullet lodging in his front windscreen.

   ·The applicant has been subject to extortion after having received two threatening letters from anonymous people — both prior to and following the shooting of his car.

2. The Tribunal adopts these findings.  The Tribunal notes in passing that some of the applicant’s attempts to bolster his claims border on farcical – such as his attempt to claim a connection with Benazir Bhutto on the basis that she signed his university degree – but there is ample other evidence to support the central tenants of his claims.

3. The applicant provided the Tribunal with a letter from [a government department] dated [in] August 2015.  The letter states in part:

   Working from the centre of Islamabad and involved with the main think tanks within the Government on most occasions I am in some position to state with some weight that nothing much can be done to secure a life of a target.  Once a target is always a target no matter where in Pakistan one resides.  These conservative groups have a wide reach and no place can be made safe for an individual once targeted.

4. The applicant also provided the Tribunal with a letter from the [police], Karachi dated [in] September 2015.  The letter states in part:

   [The applicant] has a well-established profile throughout Pakistan; he is a well known businessman representing an [overseas] Company in the shape of [Company 2] with countrywide representation for [products].  He has worked as [occupation] at many levels for multiple international companies like [company names] that have offices in the entire Pakistan; he is also an established writer; criticizing the Government [for] many publications, which have offices in Karachi, Lahore, Quetta and Islamabad.  He is also well known for his teaching skills in all major universities in Pakistan; such as, [names], etc, most of which have campuses in Karachi, Lahore and Islamabad where [the applicant] is famous for his academic excellence.  It is clear that [the applicant] has a profile famous in the entire Pakistan and hence no place is safe for him or his family in Pakistan. [emphasis in original]

5. These letters were accompanied by identification cards of the writers.  The Tribunal accepts that these letters are genuine, and accepts the views set out therein.

6. The Tribunal has considered the independent evidence available to it. The Tribunal accepts that the independent evidence establishes that Shias in Pakistan have been the subject of a sustained campaign of intimidation, harassment and violence from various anti-Shia groups in Pakistan, which operated under the ‘umbrella’ of Al-Qaeda and their infrastructure is present throughout the country, although particularly in areas such as southern Punjab, interior Sindh, and Karachi.[1]  The Tribunal also accepts that one of those groups, Lashkar-e-Jhangvi, has issued an “open letter” in which it has declared that all Shias are wajib-u-katl “worthy of killing.” The Pakistan Human Rights Commission noted that in 2013 “many Shia doctors and lawyers and other professionals were killed as a result of sectarian violence in Pakistan during 2013. Referring to attacks on Shias throughout Pakistan, the Human Rights Commission has stated that “A sustained hate campaign against Shias continued throughout the year … no efforts were made to proceed against the perpetrators”.[2] The information further indicates that the sectarian-related terrorist attacks hit diverse targets, ranging from general adherents of a particular sect to religious scholars, clerics, professionals, including doctors and lawyers, madrassa students and teachers, shrines, members and activists of sectarian and religious organisations, religious gatherings and procession including Moharram and Rabiul Awal processions, vans carrying Shia passengers, localities and residence areas of a certain a sect, and others. According to IRIN News, these are part of a wider campaign of such killings across Pakistan, including the murder of at least 85 Shia doctors.[3]

   [1] Sajjad, S B 2013, ‘Intent to Destroy: Violence against Shias in Pakistan’, Extremism Watch: Mapping Conflict Trends in Pakistan 2011 -2012, Jinnah Institute, p.21.

   [2] Human Rights Commission of Pakistan 2014, State of Human Rights in 2013, March, p.87.

   [3] Rashid, A. 2010, ‘The Anarchic Republic of Pakistan’, The National Interest, 24 August.

7. According to respected author Ahmed Rashid, writing in The National Interest; “Other Shia technocrats have also been targeted politicians, doctors, architects, bureaucrats and judges—have been singled out for assassination in all major cities”. He writes that in this way, the Pakistani Taliban have a “two-pronged offensive: the first is to politically undermine the state and its organs through terror; the second is to commit sectarian violence against all those they believe are not true Muslims. This intolerance has developed deep roots in Pakistan over the past three decades, and it has now been boosted by the jihadist policies of al-Qaeda and the Pakistani Taliban”.[4] According to Claude Rakisits, Shia doctors, lawyers and other professionals are gunned down by hit squads who want to cleanse Pakistan of its highly educated Shia minority”.[5] According to a 2010 report The Open City: Social Networks and Violence in Karachi, by that year, at least 26 Shia Muslim doctors had been assassinated in Karachi alone. The authors of the report argue that these assassinations are part of “a systematic campaign to target educated professionals within the Shia community – presumably in the expectation that this would lower the community's morale and encourage its members to seek emigration.”[6] A similar campaign occurred in the late 1990s when “around one hundred Shia professionals in Karachi were gunned down as part of a targeted killing campaign carried out by SSP and LEJ”. According to Hassan Abbas, a major consequence of this was that “many Shia professionals began moving to the United Kingdom, United States, and Canada.”[7]

   [4] Ibid.

   [5] Rakisits, C. 2009, Urban Conflict in Pakistan, Geopolitical Assessment.com. 30 January, p.5.

   [6] Budhanni, A.A. et al 2010, The Open City: Social Networks and Violence in Karachi, Crisis States Research Centre, Working Paper no. 70, March, p. 7.

   [7] Abbas, H. 2010, Shiism and Sectarian Conflict in Pakistan: Identity Politics, Iranian Influence and Tit-for Tat Violence, Combatting Terrorism Center at West Point, Occasional Paper Series, 22 September, p. 39.

8. The Tribunal accepts that the independent evidence is consistent with the applicant’s claims regarding the situation for Shias and professionals in Pakistan. In considering the applicant’s position, having regard to this evidence, the Tribunal is satisfied that the applicant’s evidence is sufficient to establish that he has a heightened risk of harm from Sunni extremists as a result of several factors. These include his teaching experience at [a university]; his publication of articles in the [journal]; his representation of [an overseas] company; his family’s apparent wealth and privilege; the fact that he is highly educated and that his wife is also well educated. The Tribunal accepts the applicant’s claims that there are persons operating in all communities throughout Pakistan, which is supported by the independent evidence discussed above, who are sympathetic to the extremists due to their belief that all Shias are infidels and monitor the activities of some Shias and report on them. The Tribunal is satisfied that the combination of these factors is sufficient to establish that there is a real chance that the applicant will be targeted by Sunni extremist groups or individuals upon his return to Pakistan.

9. Having found that there is a real chance that the applicant will be targeted by Sunni extremist groups or individuals upon his return to Pakistan, the Tribunal has also considered whether state protection is available to Shias in Pakistan. The independent evidence indicates that the Pakistani authorities do not adequately protect religious minorities in Pakistan, including Shias. The Human Rights Commission of Pakistan (HRCP) provided information in its annual report, published February 2010, on the government's reluctance to bring perpetrators against the Shia community to justice. The 2012 United States Commission on International Religious Freedom Report also notes that “Government officials do not provide adequate protections from societal violence to members of religious minority communities, and perpetrators of attacks on minorities rarely are brought to justice.” This also accords with information provided by the United Nations High Commission for Refugees in its 2012 Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan.

10. The Tribunal also considers, in view of the long standing nature of the sectarian violence, together with the independent evidence, indicating that the Pakistan authorities have been unable to contain that violence, that Pakistan cannot meet the level of protection which its citizens are entitled to expect.[8] The Tribunal is, therefore, not satisfied that the applicant will be able to access state protection in Pakistan were he to return to Karachi or Lahore or elsewhere in Pakistan in the reasonably foreseeable future.  

    [8] As discussed in MIMA v Respondents S152/2003 (2004) 222 CLR1.

11. The Tribunal is also not satisfied that relocation is a reasonable option for the applicant. The Tribunal considers that there is a real chance that he will suffer serious harm amounting to persecution if he returns to Pakistan, now or in the reasonably foreseeable future. The Tribunal finds, therefore, that the applicant has a well founded fear of persecution if he returns to Pakistan now or in the reasonably foreseeable future.

    CONCLUSIONS

12. 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).

13. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations. Therefore they do not satisfy the criterion set out in s.36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant’s wife and his two children 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. As the first named applicant satisfies the criterion set out in s.36(2)(a), it follows that the other applicants will be entitled to a protection visa provided they meet the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa.

    DECISION

14. 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.

    Glen Cranwell
    Member