1506957 (Refugee)

[2017] AATA 922

1506957 (Refugee) [2017] AATA 922 (11 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506957

COUNTRY OF REFERENCE:                  Libya

MEMBER:Amanda Goodier

DATE:11 May 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the second named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

Statement made on 11 May 2017 at 12:35pm

CATCHWORDS
Refugee – Protection visa – Libya – Political opinion – Perceived support for Gaddafi regime – Opposition to ISIL – Particular social group – Women in Libya – Armed militias – Gender based violence – Threats of killing

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994 r 1.12, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Libya applied for the visas [in] August 2013 and the delegate refused to grant the visas [in] May 2015. A copy of the delegate’s decision was attached to the application for review.

3. The applicants appeared before the Tribunal on 11 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

5. The Tribunal has before it the Department’s file in this matter and also had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources and applied the law as set out in Annexure A.  The applicant provided additional information to the Tribunal at hearing.

6. The first named applicant (applicant) was born in [Town 1], Libya in [year] and is a member of the [Tribe 1]. The second named applicant is his wife, who was born in [Town 1], Libya in [year] and is a member of the [Tribe 1]. They married in Libya in [2004]. The [remaining] applicants are the [children] of the first and second named applicants, born [year range] respectively. The applicant’s usual occupation is [occupation].

7. The applicant returned to Libya with his family [in] December 2012, returning to Australia [in] February 2013. During his visit he was detained while passing through a checkpoint and held for [several] days where he was questioned and tortured.  He was accused of supporting Gaddafi and participating in pro-Gaddafi protests in Australia.  His [family member], who had joined the [militia] on an involuntary basis with members of his tribe, intervened and secured his release for which he also paid a large sum of money to his captors.  He is opposed to the beliefs of the militia and if he returns to Libya he would be required to significantly modify his beliefs.  The applicant also declared that he fears harm from the militias because of his membership of [Group 1].  He indicated to the Tribunal he was involved and provided reports to the committee and his wife was a member who attended monthly meetings.

8. The applicant indicates his [other family member] was a member of Gaddafi’s forces and died during the insurrection.  The applicant claims that as his [family member] was a member of Gaddafi’s forces, he and his family have been imputed as being Gaddafi supporters.  The applicant claims [Town 1] continues to be controlled by [militias] with political reprisals continuing.  The Tribunalwas provided with a copy of a transfer report dated [in] May 2016 which he claims indicates medical treatment for [this family member] in Libya following an attack. 

9. The second named applicant fears returning to Libya as women’s rights have been eroded and restricted.  She is an educated person and would have difficulty finding employment as the fundamental Islamists are limiting the activities of women in all aspects of their life. 

10. The second named applicant was granted a [student] visa with her family as dependents, arriving in Australia [in] February 2011.  She received a scholarship from the Libyan Government that included financial support for her family in Australia for [number] years with the possibility of an extension if required to complete the studies.    She was granted a [further student] visa with her family members included as dependents that ceased [in] March 2016.  Her fees, accommodation and other expenses were met and she received a monthly salary.  Her scholarship ceased in [2015] as the Libyan Government ceased providing the funds. 

11. The applicant provided a copy of the decision record of the delegate refusing the application with his application for review.  In that decision record, the delegate accepted that the applicant had held a Gaddafi scholarship.   The delegate was not satisfied the applicant had participated in pro-Gaddafi protects in Australia or was detained in Libya on his return in 2012/2013 or was a member of [Group 1].   The delegate considered country information relevant to the applicant’s circumstances; his timing in lodging a protection visa application, his prolonged absence from Libya and was not satisfied that he had a well-founded fear of persecution for a Refugee Convention reason or a real risk of being subject to significant harm if he returned to Libya. 

12. The second named applicant claims to fear harm returning to Libya on the basis of her membership of a particular social group in Libya, “Women in Libya”.  She provided reports on the situation for women in [City 1] following ISIL taking control of the city as well as other [reports] on the situation for women in Libya.  The second named applicant told the Tribunal she was [occupation] for [number] years prior to her departure from Libya for Australia.  She [attended] meetings of [Group 1].

    Country Information

13. In reaching its decision, the Tribunal has considered and had regard to the country information referred to in the delegate’s decision and material that has become available subsequently regarding the worsening situation in Libya, including a report of the UN High Commissioner for Human Rights[1]

    7. Still recovering from the Qadhafi period and the armed conflict of 2011, Libya experienced a dramatic decline in its political and security situation in 2014 and 2015, amidst competing legislatures, divided State security institutions and forces, and multiple armed groups, with devastating effects for the population.

    8. In the east, in May 2014, retired General Khalifa Haftar launched Al Karamah (“Operation Dignity”), reportedly to eradicate “radical terrorist” groups from eastern Libya. An alliance of groups, including Ansar al-Sharia, joined the Benghazi Revolutionaries Shura Council to fight forces deployed under Operation Dignity. As at December 2015, hostilities were still ongoing. In the west, heavy fighting erupted in Tripoli in July 2014. Originally focused on control of Tripoli international airport, Misrata-based armed groups together with armed groups from Tripoli, Al-Zawiya, Zuwara and other towns launched the Fajr Libya (“Libya Dawn”) campaign against armed groups affiliated with Zintan.  Thereafter, Libya Dawn gained control of Tripoli as armed groups from Zintan withdrew. Libya Dawn expanded to the Warshafana region, and launched counter-offensives in the Nafusa Mountains area. Ceasefire agreements in 2015 have since reduced the intensity of clashes in the west.

    9. In 2014 and 2015, tribal armed groups engaged in localized hostilities in the south, particularly in Sabha, Awbari and Al-Kufra. Armed conflicts in the north also spilled over to the south, with some groups allying with Operation Dignity or Libya Dawn.

    10. In the meantime, groups pledging allegiance to Islamic State in Iraq and the Levant (ISIL) further emerged as a force, particularly in Derna, Sirte and Benghazi. In addition to prompting responses by the Libyan National Army aligned with Operation Dignity and a number of armed groups, Egypt and the United States of America engaged in air strikes targeting these groups.

    11. Political divisions deepened in Libya in 2014 and 2015, resulting in the formation of administrations in both the east and the west. In June 2014, elections were held for a new legislature, the House of Representatives, which confirmed the established Government. Owing to the precarious security situation in Tripoli, in August 2014, the Government, led by Prime Minister Abdullah Al-Thani, moved to Al-Baida. The House of Representatives commenced its sittings in Tobruk. The previously established legislature, the General National Congress, then re-convened, and parallel ministries were established in Tripoli. The House of Representatives endorsed Operation Dignity, while the General National Congress supports the Libya Dawn campaign. Following a year-long political dialogue, the Libyan Political Agreement to establish a Government of National Accord was signed on 17 December 2015.

    …

    14. OHCHR documented a number of unlawful killings, in particular the execution of individuals taken captive or detained/abducted, and assassinations of those voicing dissent. Reports of unlawful killings were documented in all conflict areas and by most major groupings of armed actors.

    [1] "UN report documents litany of violations and abuses amid chaos in Libya", United Nations Human Rights Office of the High Commissioner (OHCHR), 25 February 2016, (Opens in a new window)

14. It is well known that Gaddafi was captured, beaten and assassinated by local fighters loyal to the opposing National Transitional Council in October 2011, at the climax of a civil war that had begun on 17 February of that year.[2] Gaddafi’s execution was followed by a brief period of more civil interim rule. It is also widely reported that the NTC which evolved into the General National Congress notably succumbed by degrees in 2013 to 2014 to relative anarchy and inter-tribal conflict:

    Libyan society is primarily structured along tribal lines, like many other societies in the Arab world…

    In the post-Gaddafi era, this inclination has reasserted itself strongly against the backdrop of the security deterioration that is plaguing the country. Indeed, official authorities, as embodied in the General National Congress (GNC), the highest political authority in the country, and the current interim government, have had to turn to various tribes in view of their own inability to restore security and resolve a range of other problems.

    However, the tribes are often as much a part of the problem as they have been a part of the solution, in view of the eruption of inter-tribal tensions and disputes in the post-revolutionary period…

    Of particular significance in view of the power struggles in Libya today is the resurgence of an ancient animosity between the Warfala tribe, based in Beni Walid southeast of Tripoli, and the Misrata tribes based in the northern city of this name.[3]

    [2] “Libya two years on: Revolution and devolution”, Aljazeera, 17 February 2013,

    [3] “Tribes and abductions”, Al-Ahram Weekly, 6 February 2014, >

    The UN Human Rights Council reported in January 2015[4]:

    11. Indiscriminate attacks by all sides in densely populated areas have been frequently reported, resulting in civilian casualties in Tripoli, Benghazi, Warshafana, the Nafusa Mountains and other areas. While the precise number of casualties is not known, hundreds are reported to have been killed. Land mines were reportedly used in the Tripoli International Airport area and explosive remnants of war are a major hazard for civilians.

    12. Armed groups have been using a variety of weapons, including small arms, rockets, mortars, anti-aircraft guns, tanks and air attacks. Many of the weapons used are unreliable because they are old and poorly maintained, with inaccurate aiming systems and faulty ammunition. Fighters have received little training and do not operate with the appropriate discipline, command and control systems. Those factors have contributed to the indiscriminate nature of many attacks.

    13. There have been frequent power, fuel and food shortages and a breakdown in basic health and education services.

    14. The Office of the United Nations High Commissioner for Refugees (UNHCR) estimated that the violence has led to the internal displacement of nearly 400,000 persons between May and November 2014.

    15. Civilian infrastructure in Benghazi, Tripoli and other parts of Libya has been damaged extensively by the fighting. Armed groups affiliated with different camps have also engaged in the deliberate destruction of civilian property belonging to their perceived opponents in Benghazi, Tripoli and Warshafana, including through the use of bulldozers.

    16. Several hospitals were hit, including Tripoli Al-Afya Hospital and Tripoli Central Hospital, during July and August 2014. In September, a hospital in Al-Zawiya was also hit and Al-Zahra hospital in the Warshafana area was reportedly looted and burned. In Benghazi, the Hawari General Hospital suspended operations due to the fighting, and Ansar al-Shari’a temporarily occupied Al-Jalaa hospital and reportedly shelled a wing of the Benghazi Medical Centre, setting off a fire in December. Reports were also received of the obstructed evacuation of injured persons and of impeded humanitarian assistance, as well as of the misuse of medical vehicles for military purposes.

    [4] UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Libya and on related technical support and capacity-building needs, 12 January 2015, A/HRC/28/51, available at:

15. A recent report of the UN High Commissioner in Libya indicates that the findings are consistent with those in previous reports.  It indicates that there was deterioration in the security and political situation in 2014.  The Libyan political Agreement was signed and a Presidency Council headed by Prime Minister Serraj was established on 17 December 2015 which was tasked with forming a Government of National Accord.  However, the Presidency Council was unable to take full control of government functions.  Armed groups remain the most powerful actors on the ground, contributing to insecurity and abuses of human rights.  Various actors in Libya, including armed groups, some of whom act on behalf of the State, are primarily responsible for grave violations and abuse of human rights in Libya and hinder the effectiveness of support and impede the implementation of the reforms needed to ensure compliance with human rights standards and the re-establishment of the rule of law.[5]

    [5] UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Libya, including on the effectiveness of technical assistance and capacity-building measures received by the Government of Libya, 13 January 2017, A/HRC/34/42.

16. The most recent report of the Secretary-General on the UN support mission in Libya indicates that the political and security situation in Libya remains volatile and fighting continues throughout the country.  While [City 1] was liberated from ISIL control, ISIL is still active in the surrounding areas.  The report concludes that Libya is at risk of a return to widespread conflict.[6]

    [6] [Deleted.].

17. The Tribunal accepts on the basis of the country information, including numerous reports by the United Nations on the current political and security situation, that the overall political and security situation in Libya has worsened since May 2015.

18. That is strongly supported by the Australian Department of Foreign Affairs and Trade travel advice in relation to Libya, updated on 23 January 2017[7]. While focussed on the risk to Australian citizens and other foreigners in Libya, it states that there is ongoing fighting and a deteriorating security situation throughout the country, and also states that:

    ·Tripoli International Airport is closed following its extensive damage in clashes between armed groups. Commercial airlines such as Libyan Arab Airlines, Afriqiyah Airways and Tunisair currently operate flights to and from Libya departing from Maitega and Misrata airports for Cairo, Malta, Tunis, Istanbul and Rome. (However other information indicates that these are intermittent and should be checked by travellers);

    ·The road between Tripoli and Zawiya is vulnerable to attack.  Do not attempt to depart Libya via Algeria, Chad, Sudan or Niger due to a very high threat of kidnapping.  Border crossings are subject to closure without warnings;

    ·Terrorism remains a serious threat in Libya.  There is on-going conflict with fighting in Benghazi ongoing and a number of clashes in Tripoli.  Attacks target both Libyan government or security interests as well as foreign interests or areas frequented by foreigners;

    ·The political situation in Libya remains volatile.  Intense fighting continues in a number of areas, including Tripoli;

    ·Well-armed militias remain unchecked in many parts of Libya, and serious security incidents are frequent.

    [7] >

    The UK government Libya travel advice, updated on 24 April 2017 and stated to be still current as at 9 May 2017 (the Libya travel advice) states that the political situation remains fragile and the security situation remains dangerous and unpredictable, and also states:

    Intense fighting continues in a number of areas, and there remains a high threat of terrorist attacks and kidnap against foreigners, including from Daesh-affiliated extremists (formerly referred to as ISIL) and Al Qaeda, as well as armed militias. 

    There is a high threat of terrorism.  There are continued attacks across Libya including in major cities;

    There is a high threat of kidnapping throughout Libya;

    Road travel within Libya remains highly dangerous;

    Fighting has caused the temporary suspension or closure of airports, closed roads and led to the closure of some border crossings.  All airports are vulnerable to attack. 

19. An assessment of Libya’s near future from the International Crisis Group[8] states:

    On the current trajectory, the most likely medium-term prospect is not one side’s triumph, but that rival local warlords and radical groups will proliferate, what remains of state institutions will collapse, financial reserves (based on oil and gas revenues and spent on food and refined fuel imports) will be depleted, and hardship for ordinary Libyans will increase exponentially.

    [8] International Crisis Group, 26 February 2015, Libya: Getting Geneva Right, available at

20. Media reports indicate that the country has had two governments and parliaments since Tripoli was seized in August 2014 by the Fajr Libya (Libya Dawn) militia coalition and the Western recognised government fled to the eastern city of Tobruk.[9] Tripoli remains under the control of Fajr Libya, a coalition of Islamist and Misrata militias, which is targeting those from opposing tribes.

    [9] See for example Middle East Eye, Head of Libya's Tripoli parliament sacked, 31 March 2015, available at

1. The most recent UNHCR Position on Returns to Libya, issued October 2015[10], states:

   26. All claims of nationals and habitual residents of Libya seeking international protection should be processed in fair and efficient procedures in accordance with international and regional refugee law. For some individuals whose claim had been rejected previous to recent events, the current situation may, depending on the individual circumstances of the claim, give rise to changed circumstances, which need to be considered if a new asylum claim is submitted. Claims for international protection
   

   [10] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Libya - Update I, October 2015, available at: 9 May 2017] 

   of persons having been directly affected by developments since 2011 may need to be given particular attention, including, inter alia, claims submitted by political and human rights activists, members of the judiciary and law enforcement officers, women engaged in the public sphere, humanitarian workers, bloggers and media professionals, members of ethnic and religious minorities, individuals of (real or perceived) diverse sexual orientations and gender identities, and members of tribes/families or individuals perceived to be in support of one of the conflict parties or the former Gaddafi regime. Persons with these and other profiles may be in need of international protection in accordance with the 1951 Convention, for reason of real or imputed political opinion, or for reasons related to other 1951 Convention grounds. Claims need to be considered on an individual basis, carefully taking into account the particular circumstances of each case. Furthermore, where applicable, UNHCR considers that persons fleeing Libya may be in need of international protection in accordance with Article 1(2) of the 1969 OAU Convention, or, if the 1951 Convention criteria are found not to apply in the individual case, may meet the criteria for complementary forms of protection. …

2. UNHCR concludes:

   28. UNHCR commends any measure taken by States to suspend forcible returns of nationals or habitual residents of Libya, including those who have had their asylum claim rejected. UNHCR urges all States to suspend forcible returns to Libya, including Tripoli, until the security and human rights situation has improved considerably. Given the volatility of the situation, the fragmentation of control and the plethora of armed groups, UNHCR considers that, in the current circumstances, the relevance and reasonableness criteria for an internal flight or relocation alternative are unlikely to
   be met. Suspension of forcible returns of nationals and habitual residents to Libya serves as a minimum standard and should not replace international protection for persons found to meet the criteria for refugee status under the 1951 Convention and the 1969 OAU Convention. This advice is valid until such time as the security and human rights situation in Libya has improved sufficiently to permit a safe and dignified return.

3. The Department of Foreign Affairs and Trade Country Information Report on Libya states:

   While security conditions vary from place to place, the overall security situation in Libya is dire.  The lack of political stability since the outbreak of civil conflict in 2011, compounded by the resumption of conflict in 2014, has contributed to a situation where the rule of law as provided by a national government does not exist for the majority of Libyans.

4. DFAT also assesses that those involved in political activities in Libya face a high risk of societal discrimination and violence, particularly from armed militias outside of the control of either Libyan administration.  This is due to a general intolerance for diversity of opinion amongst these militias, and because they view political activities and free expression as a challenge to their authority.  This treatment may include being illegally detained, beaten or tortured; having death threats made against themselves or their families; or being killed.

5. On 24 January 2014 the Libyan parliament passed a decree discontinuing scholarships for students studying abroad (as well as salaries and bonuses to Libyan employees) for “taking part in activities inimical to the February 17 revolution”. According to Human Rights Watch[11], the decree also “calls on Libyan embassies abroad and others to draw up lists of names and refer them to the Prosecutor General for prosecution”.

   [11] Human Rights Watch, Libya: Critical TV Bans Setback for Speech, 26 January 2014,

   FINDINGS

6. Having regard to all of this material, the Tribunal is satisfied that the applicants are nationals of Libya, and accepts that their claims should be assessed against Libya for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

7. The Tribunal accepts on the evidence before it that the second named applicant is a member of [Tribe 1] and was the beneficiary of a Gaddafi scholarship. The Tribunal gives little weight to the applicant and the second named applicant with their children returning to Libya in December 2012 for a few weeks as on the basis of the available country information that there was reportedly a brief and promising respite from conflict and a degree of political stability in Libya at that time that ultimately did not last.

8. Libya reportedly saw “an explosion of civil society” after the overthrow of Gaddafi.[12] The socio-political conditions in the immediate wake of the Gaddafi assassination were evidently very different from what they have since become with a decline in the political stability and overall security in Libya since 2012.[13]  There is also evidence of the targeting of the Qadhadhfa (or Qadafa) tribal communities including the Warfala around Bani Walid at that time, and the Tribunal gives this some weight as a reliable insight into how the Misrata and their militias have treated people and tribes with perceived loyalty to the Qadhadhfa and the former Gaddafi regime.[14] 

   [12] “Libya as a Failed State: Causes, Consequences, Options”, Research Notes Number 24, The Washington Institute for Near East Policy, November 2014,

   [13] “Libya as a Failed State: Causes, Consequences, Options”, Research Notes Number 24, The Washington Institute for Near East Policy, November 2014, “Tribal feuds, local conflicts engulf Libya”, Deutsche Welle News, 16 October 2013,

9. In view of the second named applicant’s date of arrival in Australia on a scholarship, which predates the fall of the Gaddafi regime, the Tribunal is prepared to accept that she would presently be perceived by various parties and factions in Libya to have been approved for the scholarship for one reason or another by the Gaddafi regime to study here. The Tribunal accepts that this has to do with potential perceptions as to the second named applicant’s tribal, political and regional background.

10. Accordingly, the Tribunal does not propose to discuss the claims of the applicants further as it is satisfied that these claims of themselves provide a sufficient basis for the determination of this application, particularly given the worsening situation in Libya since the Department’s decision.

11. The Human Rights Watch report referred to above makes it clear that students who received scholarships from the Gaddafi government to study abroad are likely to have had their activities monitored by Libya’s diplomatic posts and that there is a predisposition by the authorities to look with some suspicion on returning scholarship-holders from overseas. It is a reasonable inference that militant anti-Gaddafi militias might in turn entertain stronger suspicions, particularly if exacerbated by specific personal circumstances. The Tribunal gives weight in this case, to the evidence indicating the Libyan GNC’s negative attitude to Gaddafi scholarship beneficiaries and the order to proceed towards “prosecuting” them. The Tribunal is prepared to view this as a call to pro-and anti-government parties alike to target and scapegoat returning international scholarship beneficiaries.  The Tribunal also gives weight to country information that the majority of women in Libya face persistent societal discrimination and the threat of gender based violence[15] and finds that as a woman returning to Libya after living and studying in a Western country as a holder of a Gaddafi era scholarship, her profile as being pro-Gaddafi could be enhanced.   

    [15] DFAT Country Report Libya 4 April 2016

12. The Tribunal gives some weight to the probability that upon re-entry into Libya, given the evidence of partisan control of road and land entry points there, the second named applicant’s tribal and other allegiances would likely be investigated and scrutinised.

13. The UNHCR has urged that the claims of a number of groups, including individuals perceived to be in support of the former Gaddafi regime, be very carefully considered in the light of the changed circumstances in Libya, even where those claims have previously been rejected.

14. On the facts before it, the Tribunal finds there is a real chance that the second named applicant could face serious harm, not only because she studied abroad on a scholarship, which might easily be perceived as a Gaddafi scholarship in light of Gaddafi’s control of all major institutions in Libya including education, but also because the scholarship allowed her to study in a western country, and in addition because she would be returning to Libya after a very long delay. 

15. The Tribunal is satisfied that it is clear from the evidence set out above that key parts of Libya, are under the control of anti-Gaddafi militias, and that now (and for the reasonably foreseeable future) there is no effective government authority capable of restraining the activities of the militias or of offering a reasonable degree of security and protection against the activities of those militias. While there appears to be sketchy information that some of the airports are open, the overall country information indicates this can change on a regular basis and the major international airports have been closed for some time.  The country information also indicates that road travel is extremely dangerous and the second named applicant would be returning to Libya with her husband and young children.

16. Considering her claims as a whole, the Tribunal is satisfied that should she return to Libya the second named applicant would be at risk of being identified and characterised as an active supporter of the former regime and would therefore be at risk of detention and harm and possibly even more severe mistreatment given that she would be a female detainee in the circumstances described by one or more of the active anti-Gaddafi militias. The Tribunal is satisfied on the available evidence that the political and security situation in Libya remains volatile, there is no effective government and the second named applicant would be unable to avail herself of any state protection throughout Libya.  

17. Having regard to its findings above, the Tribunal is satisfied that the second named applicant does face a real chance of serious harm amounting to persecution on return to Libya now or in the reasonably foreseeable future for a Convention reason, being her actual or imputed political opinion due to her having studied abroad under the auspices, or imputed auspices of the ousted Gaddafi regime. Therefore the second named applicant satisfies the criterion set out in s.36(2)(a).

18. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that first named applicant is the spouse and the [remaining] applicants are the children of the second named applicant and therefore are members of the same family unit as the second named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the second named applicant’s application. It follows that the other applicants 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

19. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the second 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 second named applicant.

    Amanda Goodier
    Member

    
    

    ANNEXURE A

    RELEVANT LAW

20. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

21. 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).

22. 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.

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

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

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

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

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

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

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

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

    Complementary protection criterion

31. 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’).

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

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

    Section 499 Ministerial Direction

34. 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.[16]

    [16] DFAT Country Report Libya 4 April 2016

    Member of the same family unit

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