1613827 (Refugee)

[2019] AATA 4784

1613827 (Refugee) [2019] AATA 4784 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613827

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Christopher Smolicz

DATE:29 July 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 29 July 2019 at 10:33am

CATCHWORDS
REFUGEE – protection visa – Turkey – race – Kurdish – political opinion – pro-Kurdish – online activities – social media posts – highly critical of President Erdogan, the Justice and Development Party (AKP) and Sunni Islamist extremism – credibility assessment – psychological report – new claim or evidence – not assisted by a migration agent – conduct engaged by applicant in Australia – politically active on social media in Turkey – member of pro-Kurdish political parties – anonymous adverse information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 36, 65, 91R, 423A, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
VSAI v MIMIA [2004] FCA 1602

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Turkey applied for the visas on 16 May 2014 and the delegate refused to grant the visas on 29 July 2016.

3. The applicants appeared before the Tribunal on 13 May 2019 and 11 July 2019 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.

7. 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).

8. 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.

9. 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’).

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

    Issue

11. The issue in this matter is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because of her:

    ·     Kurdish ethnicity

    ·     political opinion

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

13. The first named applicant (the applicant) is a Kurdish woman who was born in [District 1], Gaziantep province, Turkey. She is married to the second named applicant. They have one child (the third named applicant) born on [date].

14. The applicants arrived in Australia [in] October 2013 as holders of student visas. The applicant applied for a protection visa on 16 May 2014. At the time of application the second and third named applicants did not make individual claims for protection.

15. The Department refused the claim for protection on 29 July 2016. On 30 August 2016 the applicants applied to this Tribunal to review the Department’s decision.

    Summary of substantive claims

16. The applicant made a detailed statement dated 15 May 2014 in which she provided a history of the persecution faced by Kurdish people of the Alevi faith in Turkey. The applicant’s claims have been supplemented by a detailed submission dated 10 May 2019 provided by her migration agent.

17. The Tribunal finds that the applicant was able to provide examples of discrimination she experienced as an Alevi Kurdish woman during her education and employment in Turkey.

18. She claims she was politically active from a young age and has been a member of pro-Kurdish political parties.

19. In support of her claims she provided a reference letter from [Mr A][1] who was a former member of HDP (Turkish: Halklarin Demokratik Partisi), a parliamentary candidate as well as holding [office] of the HADEP (Turkish: Halkın Demokrasi Partisi) in [City 1] among other positions. [Mr A] states the applicant started her political activities under the umbrella of the Socialist Governance Party (SIP) and continued under HADEP since 1998. She undertook various roles assisting [Mr A] during the 2002 elections. She became a member of the Democratic Socialist Party (DTP) (Turkish: Demokratik Toplum Partisi) in 2007.

    [1] The Tribunal was able to locate a media report confirming that [Mr A] is a Kurdish political activist who was [an office-bearer] of HADEP.  [Information deleted]

20. In 2004 when she graduated from the [Discipline 1] course she became a member of Haci Bektas Veli Association (Alevi cultural association).  

21. She claims she has been arrested and detained by the police in Turkey because of her protest activity and religious beliefs. By way of example in 2005 she experienced police brutality during a protest when she was eight weeks pregnant and miscarried. As a consequence she had to receive psychological counselling.

22. The applicant claims Turkey is becoming more Islamic with each changing government and there is a problem being a woman. She claims there is no place for women in Islam. She was subjected to manhandling, molestation, insults and humiliation by the police and by Islamist Sunnis. She claims Alevi women stand out in public because of their religious practice and because they do not wear a head scarf and are viewed as disrespectable.

    New claims

23. The applicant presented new claims and evidence before the Tribunal hearing which were not before the delegate.

24. Firstly, it was submitted that in or around October 2016 she began attending [Church 1] in [Suburb 1], where her religious convictions changed and she converted to Catholicism. In April 2017 the applicant and her daughter were baptised. It was submitted that the second named applicant culturally identified as an Alevi and continues to follow the Alevi faith although he does not have particularly committed religious views.

25. Secondly, it was submitted that the applicant has had an extremely active online presence both while living in Turkey and after arriving in Australia. The majority of the applicant’s online activity relates to political commentary which is critical of the ruling conservative Justice and Development Party (AKP), President Recep Tayyip Erdogan, and Sunni Islamist extremism.

26. It was submitted that the applicant’s online activity combined with her Kurdish ethnicity and past political profile would  bring her to the adverse attention of the Turkish authorities if she was to return to Turkey in the reasonably foreseeable future. In support of these claims the Tribunal was provided with the following evidence from the applicant’s [Social Media 1] account:

    ·     posts relating to political matters from 2009 to 2016 with English language translations including the applicant’s activity logs showing the sharing of selections of posts

    ·     posts which were either in English or purely pictorial

    ·     posts showing images and videos the applicant has shared depicting police brutality in Turkey and political rallies she participated in during the Gezi Park protests

    ·     posts the applicant has shared which include images or cartoons depicting President Erdogan, along with explanations of the meaning of the posts

    ·     posts and activity logs which whilst not in English clearly relate to the HDP and or prominent HDP politicians.

27. The Tribunal was also provided with a copy of a screenshot showing the parts of the applicant’s [social media] profile which can be seen when searching for her on [Social Media 1]. The Tribunal was able to view the posts containing political content with English language explanations provided by the applicant.

28. It was also submitted that [in] 2013, the applicant uploaded a video she had taken at a Gezi Park Protest to [Social Media 2], which shows people she was marching with during the protests.[2] The title of the video is ‘[Title]’, which translates as ‘[English title]’. It was submitted that the applicant’s mother is visible at [Time 1] to [Time 2] of the video. The applicant’s voice can be heard speaking over the video.

    [2] [Information deleted]

29. It was also submitted that the second named applicant – whilst less interested in political theory than the applicant – also has strongly held political beliefs, and is deeply committed to pro-Kurdish and left-wing political causes. He has also been active on social media sharing these views. The Tribunal was also provided with a selection of screenshots showing the second applicant’s political activity on [Social Media 1], with explanations of the significance of these posts.

30. The Tribunal questioned the applicant about her social media posts.[3] The applicant said that she has posted anti-government material on [Social Media 1] and on [Social Media 2] in Turkey and Australia but was only able to provide a selection because of the prohibitive cost of obtaining English language translations. The Tribunal finds that the posts appearing on the applicant’s [Social Media 1] account which have been provided to the Tribunal are pro-Kurdish, highly critical of President Erdogan, the AKP and Sunni Ismailism extremism.

    [3] See submissions dated 5 July 2019 annexures B to K

31. The Tribunal notes that some of the online social media posts were created while the applicant was in Australia. The Tribunal has considered s.91R(3) in relation to whether the applicant has engaged in activities in Australia for the sole purpose of strengthening her protection claims. The Tribunal has also considered this new evidence in the context of s.423A which requires the Tribunal to draw an inference unfavourable to the credibility of the new claim or evidence where an applicant raises claims or presents evidence that was not put forward before the primary decision maker.

32. The applicant maintained that when she lodged the protection visa application she did not have the assistance of a migration agent and received advice from a member of the Turkish community who only partially assisted her to complete the application form before they returned to Turkey. The applicant said that this person advised her not to disclose the full extent of her political activity otherwise the Australian authorities may think she was a terrorist and refuse them protection. She claims that due to their long history of being branded as Kurdish terrorists by the Turkish authorities for their political views, the applicants followed the advice and failed to disclose all material which was relevant to their application.

33. The applicant maintained she has been active on social media and made posts critical of the AKP and Erdogan in Turkey before she arrived in Australia. The applicant also claims she was not aware that her anti-government social media posts were relevant to her claims. The applicant said that she had been involved in politics from a young age and felt strongly about the injustice experienced by the Kurdish people and she had to stand up for what she believed in and continued to post once she was in Australia and would continue to post if she was forced to return to Turkey.

34. The Tribunal accepts that the applicant was very active on social media before she arrived in Australia. In the circumstances the Tribunal finds the applicant did not create an anti-AKP/Erdogan social media profile for the sole purpose of strengthening her protection claims. The Tribunal accepts that the applicant was motivated to continue making pro-Kurdish posts and posts critical of Erdogan because of her strongly held political convictions and out of the need for support members of her ethnic group and out of a genuine interest in doing what she could to promote the situation of the ethnic Kurdish minority in Turkey.

35. The Tribunal also questioned the applicant about her reasons for converting to Catholicism since she arrived in Australia. The applicant said that as a woman living in Turkey she resented many aspects of the Muslim faith. The applicant said her religious conversion was a deeply personal experience and had a positive impact on her well-being. It has however caused her some strain interacting with members of the Alevi Kurdish community in Australia. The applicant said that she did not wish her religious conversion to be the focus of her claim for protection and it was only presented to the Tribunal after consulting with her migration agent. The Tribunal finds that the applicant’s evidence about her conversion to Catholicism is genuine and is consistent with many of her social media posts appearing on [Social Media 1] which are critical of Sunni Islamic extremist’s treatment of women.

    Mental health

36. The Tribunal was provided with a comprehensive psychological report dated 5 July 2019. The psychologist states that the applicant presented as a very intelligent, traumatised mature woman who suffers from post traumatic stress disorder (PTSD), anxiety and depression. It was reported that her mental health interferes with her ability to clearly and coherently communicate about matters which are associated with her past trauma. The psychologist notes that the applicant’s high levels of intrusion, avoidance and hypervigilance symptoms can result in the applicant presenting as “erratic in her conversation”, lacking in focus in her responses to questions, digressing when asked specific questions and avoiding eye contact.’ The psychologist concludes that these features of the applicant’s communication are entirely consistent with her diagnosis of PTSD and clinical anxiety, and should not be interpreted as obfuscation or insincerity.

37. The Tribunal observed at the hearing that the applicant presented as an extremely anxious, erratic and emotional person. She had difficulty focussing and answering questions, and a tendency to speak around the subject and obsessively repeat certain details without addressing the crux of the information requested.

38. In assessing the applicant’s evidence the Tribunal has taken into consideration the psychological report and accepts that he applicant has been psychosocially unwell since she was beaten by Turkish authorities in 2005 and miscarried.

    Anonymous adverse information

39. The Tribunal advised the applicants that it has received information from an anonymous source relevant to assessing the credibility of their claim for protection among other allegations that were more personal in nature. As required under the procedural code, the Tribunal put the gist of the information to the applicant for her comments and response under s.424A of the Act. The applicants denied the allegations. The Tribunal observed that the applicant became very emotional and distressed when addressing the allegations and said that there are members of the Turkish community in Australia who wish to cause them harm. The Tribunal notes that the allegations are anonymous and not supported by a signed statement or any other evidence. In assessing the applicant’s response to the allegations the Tribunal has had regard to the psychologist’s report which confirms that the applicant has limited capacity to trust and develop friendships in the [community] including people from their own community.  The Tribunal also accepts the applicant’s conversion to Catholicism may have resulted in the applicant being ostracised from members of her community living in Australia. The Tribunal is aware that false allegations can easily be made by anonymous sources for various reasons and in the circumstances has decided to exercise caution and not to place any weight on the information.

40. In conclusion the Tribunal is satisfied that the applicant has provided a reasonable explanation why the new claims were not raised or evidence presented before the primary decision was made. Although it is unusual that an application for a protection visa would not disclose information which is directly relevant to their claims the Tribunal has had regard to the applicant’s mental health and the fact she has not had the benefit of migration advice when she completed her application.

41. The Tribunal does not disregard the applicant’s social media posts in assessing her claims for protection and has taken this conduct into account for the purposes of considering whether the applicant has a well-founded fear of persecution. The Tribunal has decided to wholly accept the applicant’s evidence. The Tribunal accepts the applicant has been supporting pro-Kurdish political parties from an early age and has been politically active on social media in Turkey and Australia in support of her political beliefs.

    Does the applicant have a well-founded fear of persecution for a Convention reason?

42. The next issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a Convention reason in light of the Tribunal’s factual findings and country information detailed below.

43. DFAT confirms that political parties representing Kurdish interests have traditionally faced strong opposition from the Turkish state and the government has declared many pro-Kurdish parties illegal on the grounds they have provided support to the PKK. The leading pro-Kurdish parties are the HDP and its regional sister party the BDP.[4] Information confirms that the HDP and a range of other Kurdish groups are considered terrorist groups by the Turkish Government.[5]

    [4] DFAT Country Information Report Turkey, 9 October 2018 [3.43]

    [5] DFAT Thematic Report Kurds in Turkey, 2 June 2014

1. Country information confirms that Turkey’s anti-terror law provides a vague yet broadly worded definition of terrorism, which can result in terrorism charges against any member of an organisation which commits criminal activity with the aim of changing the attributes of the republic. The anti-terror law has been used by the Turkish authorities to criminalise the non-violent expression of political views. These provisions have been relied on heavily to prosecute individuals linked with the PKK.[6] The UN special rapporteur on freedom of expression and opinion has also reported in 2017 that the Turkish government has failed to comply with international law by failing to ensure that the offences introduced under the state of emergency were ‘narrowly defined and applied according to strict implementation of the standards of necessity and proportionality’.[7]

   [6] DFAT Thematic Report Kurds in Turkey, 2 June 2014

   [7] Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on his mission to Turkey, 21 June 2017, A/HRC/35/22/Add.3, 5 at [17]

2. Human Rights Watch also confirms that since the cease-fire agreement between the Turkish government and the PKK ended on 20 July 2015, the Turkish government launched a crackdown on terrorism with the detention of thousands of PKK supporters.  The security operations in the period January to May in towns in the southeast resulted in displacement of up to 400,000 residents. Amidst heavy clashes, hundreds of residents, police, soldiers and PKK-linked militants died.[8]

   [8] >

   In a report updated in June 2018, Minority Rights Group International referred to:

   a process of repression against Kurdish civil society, which was particularly targeted in the wake of the failed coup attempt in 2016 and the subsequent state-led purge. Kurdish NGOs have been closed, private schools with Kurdish language curriculums have been shut down, and Kurdish teachers, academics and officials summarily dismissed.[9]

   [9] Minority Rights Group International, Turkey, Kurds, Current Issues, updated June 2018 

3. The US Congressional Research Service (US CRS) published a report in November 2017 which noted:

   Under the post-coup-attempt state of emergency, Turkey’s government has cracked down on domestic political opponents. A primary focus, in addition to the Gulen movement, appears to be Turkey’s Kurdish minority. Heightened ethnic Turkish-Kurdish tensions predated the attempted coup, having been exacerbated since mid-2015 by renewed conflict between government forces and the PKK. Key Kurdish political leaders have been imprisoned since late 2016. Additionally, dozens of elected Kurdish mayors have been removed from office and replaced with government-appointed “custodians.”[10]

   [10] US CRS, ‘Turkey: Background and U.S. Relations In Brief,’ 9 November 2017 

4. The Tribunal has had regard to country information and finds that as a Kurdish involuntary returnee the applicant will come to the attention of the Turkish authorities at the airport. The Tribunal also finds that since the applicants are registered in the southeast of Turkey, they will be identified as Kurds. As noted above, the Turkish authorities regularly target people who hold pro-Kurdish political opinions for persecutory treatment under broadly framed provisions of the Turkish Penal Code.

5. DFAT confirms that:

   Turkey’s sophisticated information databases mean that failed asylum seekers are likely to come to the attention of the government if they have a criminal record or are a member of a group of particular interest, including… Kurdish or opposition political activist, a human rights activist.[11]

   Social media in Turkey

   [11] DFAT, DFAT Country Information Report – Turkey, 9 October 2018, 51 at [5.28]

6. The Tribunal has regard to recent country information and finds that the Turkish authorities have detained and prosecuted large numbers of people over social media posts criticising the AKP government and its policies.[12] Reports confirm that in the wake of the failed July 2016 coup and the subsequent referendum giving the president sweeping new powers, online websites, blogs, and social media have emerged as a centre of opposition. As a consequence the removal of content from a news site or social media is an increasingly common tool used by the Turkish government.[13] For example, Al Jazeera reported in July 2016 that Turkish prosecutors were investigating people who ‘have alleged on social media that a July 15 coup attempt was a hoax carried out by the government, the country’s justice minister said’.[14]

   [12] Human Rights Watch Turkey: Crackdown on Social Media Posts March 27, 2018

   [13] Reuters Institute Digital News Report 2017 Turkey Supplementary Report, Servet Yanatma

   [14] Al Jazeera, ‘Turkey investigates those who say coup attempt was hoax,’ dated 24 July 2016,

   >

   The Tribunal finds that the recent crackdown on social media posts by the Turkish authorities is directly relevant to the applicant’s claims for protection.  By way of example the Tribunal notes that the German foreign office has specifically issued statements warning citizens about using social media in Turkey. The German foreign office has reported that “A simple ‘like’ on Facebook or comments on social media can lead to charges of terrorism and anti-state propaganda, … which in turn can lead to years-long jail sentences.” It was further reported persons with close personal relations with Turkey, have been refused entry since the beginning of 2017 without being given reasons. Affected persons had to wait in custody for several hours to several days and their mobile phones were taken from them and searched for stored contents and contacts.  It was reported “although the reasons for refusing entry are generally not communicated a connection with anonymous denunciations cannot be ruled out. It should be noted that a high proportion of the rejected have Kurdish or Turkish-Alevi family background.”[15] The German foreign ministry has also given travel advice to people traveling to Turkey who may have attended meetings organised by groups banned in Turkey that they risk being detained.[16]

   [15] German foreign office warns citizens about using social media in Turkey, 25 October 2018 German Foreign Ministry tightens travel advisory for Turkey, DW, 10 March 2019 >

   Having regard to the applicant’s combined profile as a Kurd from southeast Turkey the Tribunal finds that there is a real chance that the Turkish authorities at the airport will examine her social media profile and discover her posts which are pro-Kurdish, highly critical of President Erdogan, the AKP and Sunni Ismailism extremism.

7. DFAT reports that:

   According to human rights defenders, pro-Kurdish activists who made comments on social media that authorities found offensive were now likely to be identified as PKK supporters and faced much harsher punishments than in the past: instead of one to two months in prison, activists now faced years’ long charges on broad terror offences, and family members were also likely to come under official scrutiny.[17]

   [17] DFAT, DFAT Country Information Report – Turkey, 9 October 2018, 29 at [3.47].

8. The Tribunal finds that there is a real chance the applicant’s Kurdish ethnicity and political engagement with the pro-Kurdish political parties on social media will bring her to the adverse attention of the authorities in Turkey in the reasonably foreseeable future.

9. As detailed above, country information confirms that the Turkish authorities arrested and imprisoned thousands of citizens in the aftermath of the July 2016 coup attempt on the grounds of alleged links with terrorism, particularly from those groups seen as a possible threat to the government. Specifically, the UK Home Office confirms that Kurds appear to have been specifically targeted by the authorities.[18]

   [18] Minority Rights Group International, Turkey, Kurds, Current issues, updated June 2018  [2.4.4]

10. In conclusion, the Tribunal finds that the applicant’s claims are consistent with country information referred to above which confirms that people with imputed pro-Kurdish political views such as the applicant, face a high risk of official discrimination in the form of arrest, monitoring, harassment, and prosecution. In the circumstances, looking to the reasonably foreseeable future, the Tribunal finds there is a real chance that the applicant will suffer serious harm from the Turkish authorities on her return and that she may be charged with being a member of a terrorist group. The Tribunal finds that the applicant’s fear of persecution because of her Kurdish ethnicity and her pro-Kurdish political opinion is well-founded.

11. On the basis of the evidence, the Tribunal accepts the applicant’s ethnicity (race) and political opinion are the essential and significant reason for the harm she fears. Therefore her fear of persecution is for a Convention reason. Accordingly, the requirements of s.91R(1)(a) are met.

12. Having regard to the non-exhaustive list in s.91R(2) of the type and level of harm that will constitute ‘serious harm’ for the purposes of s.91R(1)(b), the Tribunal accepts that the persecution feared by the applicant involves serious harm, including significant physical harassment or ill-treatment and a threat to her life or liberty. It follows that the requirements of s.91R(1)(b) are also met.

13. In relation to the requirements of s.91R(1)(c), the Tribunal is satisfied from country information set out earlier that the feared persecution by the current Turkish authorities would involve conduct which is systematic in the sense of being deliberate and premeditated (see VSAI v MIMIA [2004] FCA 1602) and discriminatory in the sense that it would be directed at the applicant for the Convention reason of her Kurdish ethnicity and pro-Kurdish political opinion. It follows that the requirements of s.91R(1)(c) are met in this case.

14. As the Tribunal has accepted that the applicant has a well-founded fear of persecution from the Turkish authorities, it accepts that the feared persecution is not localised and that it is not therefore necessary for the Tribunal to go on and make findings as to whether it would be reasonable for the applicant to relocate.

15. In all the circumstances, the Tribunal accepts that there is a real chance that the applicant will face serious harm now or in the reasonably foreseeable future if she returns to Turkey.

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

    Member of family unit

17. The Department advised the Tribunal that in October 2017 the applicant’s relationship with her husband had broken down and the applicant was living separately to her husband. The Tribunal questioned the applicant and her husband about their relationship at the hearing. The second named applicant said that the applicant’s mental health had deteriorated since they arrived in Australia and this had an impact on their relationship and they lived apart for a while. The applicants advised the Tribunal that they had since reconciled and they are committed to each other and their daughter. The Tribunal has had regard to s.5F of the Act and is satisfied that the first and second named applicants are married and have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing and that the applicants now live together with their dependent child.

18. The Tribunal is satisfied that the second and third named applicants 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.

19. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).

    DECISION

20. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

    Christopher Smolicz
    Member