2312761 (Refugee)

[2024] AATA 3299

2312761 (Refugee) [2024] AATA 3299 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Cassandra Benjamin

CASE NUMBER:  2312761

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Peter Haag

DATE:18 March 2024

PLACE OF DECISION:  Melbourne

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 applicant satisfies 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 18 March 2024 at 3:03pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit and Family Court remittal – religion and particular social group – Shia Muslim in Sunni majority country – fear of harm from state and non-state actors – high-profile businessman and community leader – son a high-profile profession and community leader – supporting oral and documentary evidence – rising official discrimination and societal intolerance – member of family unit wife – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2

CASE
ARF v MICMA [2023] FedCFamC2G 621

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. For ease of reference, [the first named applicant] is identified as A1, and [the second named applicant] is identified as A2.

2. 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 (Cth) (the Act).

3. The applicants, who claim to be citizens of Pakistan, applied for protection visas on 10 February 2014 and the delegate of the Minister refused to grant the visas on 9 February 2016 (the primary decision). The applicants claim to be citizens of Pakistan. Their claims as to their identities, nationality and country of origin have not been disputed by the Department or in any prior proceeding before the Tribunal, differently constituted, or the Federal Circuit and Family Court of Australia. Their claims are consistent with the evidence before the Tribunal. 

4. Based on the forgoing considerations, the Tribunal finds the applicants are citizens of Pakistan, and as such their protection claims will be assessed against Pakistan as the country of reference and ‘receiving country’ respectively.

   THIRD COUNTRY PROTECTION

5. The Tribunal is satisfied as to the applicants’ identities and that they are citizens of Pakistan. There is no evidence that either applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. On that basis the Tribunal is satisfied the applicants are not precluded by operation of s 36(3) of the Act from protection in Australia if they satisfy the requirements for a protection visa.

   Federal Circuit and Family Court of Australia decision

6. Upon the delegate of the minister refusing to grant the applicants a protection visa they unsuccessfully applied to the Tribunal, differently constituted, for merits review of the delegate’s decision. On 16 February 2018 the applicants applied to the Federal Circuit Court and Family Court of Australia for review of the previous Tribunal’s decision. Upon finding an error of law, the Court remitted the matter to the Administrative Appeals Tribunal for determination according to law.[1]

   [1] ARF v MICMA [2023] FedCFamC2G 621

7. It is the task of the Tribunal, differently constituted, to reconsider the merits of both applications for a protection visa.

8. The applicants appeared before the Tribunal on 8 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

9. The applicants were represented in relation to the review.

   Section 5AAA of the Act

10. Pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicants’ claims and evidence.

    Background

11. The applicants arrived in Australia from Pakistan [in] September 2013 on visitor visas with [Number] of their [children]. A1 and A2 applied for protection visas on 10 February 2014. The history of both applications is briefly recounted in paragraphs [5] and [6] of these reasons for decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

13. 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).

14. 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.

15. 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’).

16. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

17. The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The claims

18. A1 claims he would be persecuted in Pakistan for the reason of being a devout Shia Muslim, and a member of a devout Shia Muslim family, and through that combination of factors, he would face a real chance of serious harm, if he is removed to Pakistan now or in the reasonably foreseeable future.

19. A2 claims she would be persecuted in Pakistan for the reason of being a devout Shia Muslim, and member of a devout Shia Muslim family, and through that combination of factors, she would face a real chance of serious harm, if she is removed to Pakistan now or in the reasonably foreseeable future.

20. Additionally, A2 claims to meet the requirements for a protection visa on the basis she is married to A1, they reside together as a married couple, and that she is a member of the same family unit as A1.

    The hearing

21. A1 and A2 attended the hearing. A1 gave evidence, A2 did not give evidence.

22. A1 and A2 place a high degree of reliance on the evidence of [Mr A].[2] He provided a written statement to the Tribunal for the purposes of the review. The statement is dated 12 February 2020 and it was written on the letterhead of [Organisation 1]. The letterhead includes the street address, email address and ABN of the [organisation]. At hearing [Mr A] affirmed that the content of his statement is true and accurate. 

    [2] [Redacted]

23. The Tribunal accepts [Mr A] is a member of the Shia Muslim faith community, a Shia Imam, religious scholar, and [Organisational position] of [Organisation 1]. The Tribunal also accepts he is the [Official position] of [Organisation 2] and that [Organisation 2 represents] the Shia Muslim community in Victoria.

24. Having listened carefully to the evidence of [Mr A] and considered his evidence in the context of other relevant evidence before the Tribunal, particularly the documentary evidence that is relevant to the religious activities of both applicants and their family members in Pakistan and subsequently in Australia, and the status [Mr A] holds in [Organisations 1 and 2], the Tribunal is satisfied he is likely to be a reliable witness in this proceeding.

25. [Mr A] gave evidence that he knew of the religious devotion and related activities of A1 and A2 in the Shia community in Pakistan before they arrived in Australia. [Mr A] gave specific evidence about A1’s high standing in the Shia Community in Karachi, gained as a trustee of [Trust 1]. The witness described A1 as an active trustee who was in ‘good condition’ to help needy members of the Shia community.

26. In response to the Tribunal’s questions the witness explained that when he said A1 was in ‘good condition’ he meant it was well known that A1 was a wealthy businessman, and that he had the financial means to make monetary contributions to [Trust 1] for the purpose of aiding the education of children in respect of whom the Trust was satisfied their fathers were murdered by Sunni extremists, and for additional charitable purposes that advanced the welfare of Shia Muslims in Pakistan.   

27. [Mr A] also said at hearing that both applicants were active in the Shia community in Karachi, the city in which they resided, raised their children and in which A1 conducted his businesses. A1 had a high religious profile: he was amongst the Shia leadership group and in the front ranks of street processions that commemorated significant events in the history of the Shia Islam, such as Muharram. During Muharram Shia lament the killing of the descendants of Prophet Muhammad by the Companions of the Prophet who are identified now as Sunni Muslims.

28. A1 provided documentary evidence that he encouraged and supported his son [Mr B], in Pakistan to become a [Occupation 1],. [Mr B] now resides in Melbourne with his wife, an Australian citizen, and their [children]. The Tribunal has also considered two Statutory Declarations declared by [Mr B] in Melbourne; the first one was declared on 6 November 2013, and the second one was declared on 6 December 2016.   

29. In summary, [Mr B] declared that he is a devout Shia Muslim and that his parents (A1 and A2) and siblings are devout Shia Muslims. He is a prominent [Occupation 1] in Pakistan and Australia. He maintains an (identified) website where his [Product 1] is publicly available, and that his [Product 1] is well known in Pakistan and Australia. In addition to his own website his [Product 1] is available on (identified) Shia websites. [The applicant] declared that over a period of years he [made his Product 1 available] in Pakistan.

30. In evidence [Mr A] described [Mr B] as his ‘right hand’ because of his [Occupation 1 work], and his leadership role as a community representative and organiser of religious and secular community activities in Melbourne. This evidence is supported by information in the named website, and photographic evidence and other documentary evidence in both the Department and Tribunal files.[3]  The evidence is also consistent with A1’s evidence at hearing.

    [3] For example see Tribunal file Doc Id 12134221, email with attachments

31. [Mr A] gave evidence to the effect that since A1 and A2 arrived in Australia their religious practices have been a continuation of their religious practices in Pakistan. A1 has publicly and prominently participated in Shia Muslim Street processions in Melbourne that lamented the killing of the descendants of Muhammad the Prophet by the Companions of the Prophet (Muharram), who are, according to Shia faith traditions, the predecessors of Sunni Muslims. This event precipitated the continuing schism between Shia and Sunni Muslims[4] which A1 and A2 assert is the cause of the risk of serious harm and significant harm they faced in Pakistan and would again face if they are removed to Pakistan.

    [4] DFAT Country Information Report – Pakistan – January 2022 [3.55] – [3.61]

32. The evidence of A1, supported by the evidence of [Mr A] and the documentary evidence submitted to the Department and Tribunal established to the satisfaction of the Tribunal, that the A1 is a prominent member of the Shia Muslim community in Melbourne, and that he gained that status due to his high standing in Pakistan as a wealthy person in business; a generous financial contributor to [Trust 1] in Karachi; a publicly prominent Shia religious figure in Karachi; combined with his prominent religious role as a devotee of Shia Islam in Melbourne; and, that he is the father of [Mr B], a prominent [Occupation 1] and community leader.

33. The prominence reached by [Mr B] in Pakistan and Australia as a [Occupation 1] is sufficient, through close family relationship to significantly highlight A1s continuing public profile as influential Shia Muslim who prominently demonstrate his believe that Sunni Muslims are not followers of the true faith.[5]

    [5] Tribunal file, doc Id: 1210086. 12125536,12100816, 12134221,12218136, 12222335,12222340,12222346

34. DFAT Country Information Report – Pakistan – January 2022 (DFAT report) states that 96.47 per cent of the population is Muslim and 80–90 per cent of that number are Sunni Muslims and 10–20 per cent are Shia Muslims.

35. The DFAT report states that most Pakistani Shia Muslims are not physically distinguishable from Sunni Muslims, and A1 and A2 do not claim to be physically distinguishable from Pakistani Sunni Muslims.

36. The DFAT report also states that Shia Muslims face a rising religious intolerance and official discrimination in the form of blasphemy accusations. It is implied in the DFAT report that the Sunni majority, are increasingly intolerant of Shia Muslims. Over 70 per cent of blasphemy cases are against Shia Muslims.[6] Anti-Shia sentiment is seen in politics: in July 2020, the Punjab Provincial Assembly passed a law to ‘protect the foundation of Islam’ which would criminalise Shia’s beliefs about the Companions of the Prophet being responsible for killing the descendants of the Prophet Muhammad (the Governor returned it for revision).[7]

    Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism. In 2020, over 40 Shi’a were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions. Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities. The Karachi head of the TLP[8] openly threatened beheadings for Shi’a ‘blasphemers’. Videos of these incidents circulated on social media. Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shi’a clerics from leaving home and by cutting off mobile phone services in major cities during processions.[9]

    [6] DFAT report [3.58]

    [7] Ibid

    [8] Emphasis added: the TLP is the common acronym for Tehreek-e-Labbaik Pakistan, which is an influential Sunni extremist religious movement and political party: see DFAT report [2.46]

    [9] DFAT report [3.59]

37. The DFAT report states that Shia have historically been targeted by sectarian terrorist groups such as the TPP, LeJ and IS. These groups have attacked individuals, places of worship, shrines, and religious schools, as well as Shias travelling to Iran or Iraq for religious pilgrimage. The frequency of terrorist attacks targeting Shia has declined steadily since 2013. Terrorist attacks targeting Shia in 2020 killed five and injured 2020. (This figure does not include attacks targeting Shia Hazaras.)[10] In 2013 there were 471 deaths, and 2019 there were 32 deaths of Shia Muslims killed by Sunni Terrorists.[11] The DFAT report attributes this trend to an overall improvement in the security situation in Pakistan provided by the military and police at places of worship and processions.[12]

    [10] Ibid [3.60]

    [11] Ibid

    [12] Ibid

38. Nevertheless, sectarian terrorist groups retain the capacity and intent to carry out attacks against Shia anywhere in the country. By way of example the DFAT report states that at least three people were killed and 50 injured in a terrorist attack on a Shia procession in Punjab in August 2021.[13]

    [13] Ibid

39. DFAT assesses Shia in Pakistan face a moderate risk[14] of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shia. Furthermore, Shia face a moderate risk of societal discrimination in the form of anti-Shia protests and community violence.

    [14] ‘Moderate risk’ means DFAT is aware of sufficient incidents to suggest a pattern of behaviour: DFAT report page 6

40. In August 2022 the United States Commission on International Religious Freedom (USCIRF) states in its ‘Country Update: Pakistan,’ as part of its key findings that religious freedom and conditions remain on a negative trajectory with religious minorities subject to frequent attacks and threats including accusations of blasphemy, targeted killings, lynchings, mob violence, forced conversions, and disruption of houses of worship and cemeteries.[15] 

    [15] USCIRF Annual Report 2023

41. The USCIRF Annual Report 2023 for Pakistan at page 34 states the new government under Prime Minster Shehbaz Sharif weaponised the country’s blasphemy laws against the former Prime Minister Imran Khan and his cabinet. The report also states religious minorities are especially vulnerable to prosecution or violence-based on blasphemy allegations in a society that has grown increasingly intolerant of religious diversity.

42. According to international media reports, and as a matter of common knowledge Shehbaz Sharif was elected as Prime Minister of Pakistan for a second time in March 2024.

43. The evidence available to the Tribunal, including the evidence A1 provided to the Department, and A1 and A2 provided to the Tribunal, is sufficient to establish to the satisfaction of the Tribunal that A1:

    ·Was a successful and well known person in business in Pakistan, having inherited from his father a substantial business in [Product 2]. His father established the business in Lahore in [Year]. The year after A1 married A2 in Lahore in [Year] A1 relocated with A2 to Karachi where A1 continued to trade in [Product 2].    

    ·In Karachi A1 branched out and established a business he named ‘[Business name]’ which bought and sold [Products 3 and 4].

    ·Was a silent partner in [Business name 2], a business that imported [Product 5].

    ·Travelled in Asia and purchased [Product 6] that he sold in Pakistan.

    ·No longer owns or operates those businesses.

    ·Had a high-profile in the Shia Muslim community in Pakistan. He was in the forefront of the activities of a charitable trust to which he was a significant donor. The Trust provided significant financial support and social welfare leadership for the benefit of needy Shia families, in particular, the widows and children of Shia men believed to have been killed by Sunni extremists.

    ·Was a Shia leader who was at the forefront of religious processions during Muharram, and he led prayers during Shia religious observances in Pakistan.

    ·Continues to practise Shia Islam in Australia and does so contentiously.

    ·Is an elder of the Shia religious community in Australia where he has a prominent public profile based on his commercial and religious standing in Pakistan, and his religious devotion and public participation in Shia religious observances such as prayer recitations and processions.

1. The evidence also establishes to the satisfaction of the Tribunal that the applicants’ son, [Mr B], is a prominent Shia community leader in Australia who has represented that community as a member of organisations in Melbourne, such as [Organisation 3] and [Organisation 4].[16] He has met with various political leaders in the cause of inter-community harmony.[17] The Tribunal is also satisfied [Mr B] has a religious profile in Karachi and more broadly in Pakistan, and Australia as a [Occupation 1] who prominently and contentiously practices [his profession]. 

   [16] Tribunal file Doc Id 12134221

   [17] Ibid

2. This is an exceptional case.  The evidence of the prominent religious profile of A1 in Karachi and Australia combined with the prominent profile of his son in Pakistan and Australia as a religious leader, [Occupation 1] and Shia spokesperson in the broader community in Australia, are considerations relevant to the assessment of the chance of serious harm or significant harm A1 would face if he were removed to Pakistan. In this case the evidence demonstrates A1 would face a chance of harm engendered by his personal religious profile combined with the religious profile of his son. That combination of profiles would be reasonably likely attached to A1 if he is removed to Pakistan.  Significantly, a claim of harm asserted by A1 is based on the postulated risk of harm he would face from Sunni extremists, and from state and non-state actors predisposed to alleging against prominent Shia Muslims that they are blasphemers.

3. Relevantly, the DFAT report states at paragraph [3.31] that:

   Religious extremism and intolerance are on the rise in Pakistan. A record number of blasphemy cases were filed in 2020, and public and online hate speech has increased. While the number of sectarian attacks decreased from 2013-20, in line with an overall improvement in the security situation, violence has recently increased, and attacks on religious minorities, their places of worship and festivities continue. Multiple interlocutors told DFAT the government overlooked religious extremism to avoid antagonising powerful religious lobbies (such as the TLP).

4. The conviction rate for blasphemy in the lower courts is high, and judges are often under enormous public pressure to deliver a guilty verdict. Apparently most guilty verdicts are overturned by the higher courts, but an accused blasphemer was likely to spend years in prison even if the accusation was eventually found to be baseless.[18] Accused blasphemers are at risk of extrajudicial killing, before, during and after being taken into custody.[19]

   [18] DFAT report [3.35]

   [19] Ibid [3.36]

5. DFAT assesses that people accused of blasphemy are at high risk of extrajudicial violence and the death penalty, and a high risk of societal and official discrimination in the form of popular denunciation, unfair trials, and inadequate state protection. The risk is especially acute for members of religious minorities, including Shia.[20]

   [20] Ibid [3.37]

6. The DFAT report states that conditions in detention and prison facilities in Pakistan are extremely poor. Overcrowding is rife.  Issues include inadequate food, sanitation, medical care, light and ventilation, and lack of portable water.[21]

   [21] Ibid [5.20]–[5.22]

7. In the context of the risk of harm relating to Shia Muslims accused of blasphemy, and the related risk of confinement in facilities in respect of which conditions have been authoritatively described as extremely poor, it is relevant to consider the current state of A1’s health. According to a medical report provided to the Tribunal, A1 is adversely affected by several diagnosable medical conditions, including heart disease, diabetes type-2 and depression. The report was provided by [Dr C], general practitioner, [Address].

8. The totality of the evidence, including A1’s medical evidence, considered in conjunction with the cited aspects of the DFAT report which includes references to the influence of public pressure on judges at first instance to convict accused Shia Muslims of blasphemy; and, that the majority of such convictions are overturned on appeal after an accused blasphemer has spent a long time in extremely poor detention and prison conditions, supports A1’s claim that he would face a real chance of serious harm if he were accused of blasphemy in Pakistan as a consequence of him continuing to practise his faith in the way he usually practises it.

   Findings

9. Based on the evidence considered in conjunction with the cited country information the Tribunal is satisfied that A1 would return to Pakistan as a prominent and influential Shia who, as a matter fundamental to his identity and conscience, would continue to practise and seek to advance his Shia faith and the welfare of Shia Muslims.

10. Additionally, the Tribunal is satisfied of the existence of a real chance A1 would be noticed by Sunni extremists and persons possessed of a tendency to maliciously alleged blasphemy against Shia Muslims if he is removed to Pakistan.

11. The Tribunal is also satisfied of the existence of a real chance A1 would be subject to adverse attention from Sunni extremists, and from persons who for reasons of religion are possessed of a tendency to maliciously alleged blasphemy against prominent Shia Muslims, such as A1.  

12. The Tribunal is satisfied the real chance of serious harm posed to prominent Shia Muslims by Sunni extremists and persons possessed of a tendency to alleged blasphemy against prominent Shia Muslims in Pakistan, and to influenced judges in the lower courts to convict them of that offence, amounts to conduct that is systematic and discriminatory in nature.

13. Having considered the applicant’s claims individually and cumulatively, the evidence considered in conjunction with the cited country information, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance A1 would be subjected to serious harm for reasons of religion, that being a reason that meets the provisions of s 5J(1)(a) of the Act, if he is removed to Pakistan now or in the reasonably foreseeable future. Accordingly, A1 satisfies a criterion in s 36(2)(a) of the Act.

14. The Tribunal is also satisfied religious persecution is the essential and significant reason for the real chance of serious harm that would be faced by the applicant if he is removed to Pakistan now or in the reasonably foreseeable future.

15. The Tribunal finds that the real chance of serious harm faced by A1 would exist in Karachi, the city where he resided with his family since [Year], and to which he is reasonably likely to relocate if he is removed to Pakistan, and additionally, that the real chance would also exist throughout Pakistan.

16. Consequently, the Tribunal is satisfied that A1 has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely religion and that he meets the definition of refugee as set out is s 5H of the Act.

17. For the reasons given above, the Tribunal is satisfied A1 is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

    [The second named applicant] (identified as A2 in these reasons)

18. At hearing A2’s representative conceded that if the Tribunal found in favour of A1, findings in respect of any protection claims raised by A2 would not be required, providing the Tribunal found A2 and A1 to be members of the same family unit.

19. Without hesitation the Tribunal finds A2 is married to A1; they reside together in an ongoing marriage relationship; and that A1 and A2 are members of the same family unit for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of A2’s application depends on the outcome of A1’s application. It follows that A2 will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

20. 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 applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Peter Haag
    Member