1509786 (Refugee)

[2018] AATA 715

1509786 (Refugee) [2018] AATA 715 (15 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509786

COUNTRY OF REFERENCE:                  Libya

MEMBER:Jane Marquard

DATE:15 February 2018

PLACE OF DECISION:  Sydney

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

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

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

Statement made on 15 February 2018 at 12:50pm

CATCHWORDS
Refugee – Protection visa – Libya – Political opinion – Involvement with Gaddafi regime – Deteriorated security situation – Warshefana region – Renewed political activity – Threats of killing – Arrest warrant – Transit through Tripoli airport

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 424AA, 499
Migration Regulations 1994 Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

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. The applicants are a husband, wife and their [child] ([age]) from Libya.

2. The applicants first arrived in Australia [in] February 2011 on the first-named applicant’s [temporary] visa.

3. The first-named applicant departed Australia and returned to Libya [in] November 2012. He came back to Australia [in] February 2013. He was granted a second [temporary] visa [in] May 2014.

4. The family applied for protection visas under s.65 of the Migration Act 1958 (the Act) [in] December 2014.

5. A delegate of the Minister for Immigration and Border Protection (the Department) refused to grant the visas [in] June 2015.

6. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   DECISION

7. For reasons set out in this statement of decision and reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   CLAIMS AND EVIDENCE

   Evidence to the Department

8. In summary, the first-named applicant claims to have a well-founded fear of persecution for reasons of his actual or imputed political opinion, and/or ethnicity. He also claims that there is a real risk of significant harm were he to be removed from Australia to Libya. The other applicants rely on the claims of the first-named applicant.

9. A summary of the evidence provided by the applicants to the Department in the application forms, supporting documents and at an interview with a delegate of the Department, is as follows:

   ·The first-named applicant was born in Tripoli, Libya in [year]. He is a Muslim Arab and a member of the Warshefana tribe, from the outskirts of Tripoli. He attended [number] years of high school in [Town 1], finishing in [year]. He graduated from [his college] in [year]. From January 2008 until January 2009 he worked in a private business, which he started, suppling [products] in Tripoli and surrounding areas. He started the business with help of his brother and other relatives who had influential relationships that extended to the inner circle of the regime;

   ·His father had been a high ranking officer in the army. He had been in the military since his birth, and the insignia on his uniform was [details deleted];

   ·His mother, [sisters] and [brothers] are still living in Libya;

   ·From January 2009 until January 2010 he worked for [a company] in Tripoli;

   ·While working there, he joined the Revolutionary Committee in [a specified] town. Many missions were assigned to him, including the position of Revolutionary Activities Coordinator in that area. His activities included arranging seminars, meetings to implement the revolutionary ideas of former Prime Minister, Colonel Muammar Gaddafi (Gaddafi) amongst the population, and reporting suspected activities in the community. He also arranged meetings and debates at schools and universities to discuss the teachings and speeches of Gaddafi;

   ·He joined and was accepted to the Committee because of family history and his family’s affiliation with the regime. His elder brother was a prominent member of the Committee. His brother is now living in [Country 1] and is wanted by the militia. His brother was also the head of [a] section of [a government agency];

   ·The applicant also joined the People’s Guard in January 2010. It was responsible for guarding the government establishments. This was led by [an officer], who was also the commander of a special regiment responsible for protecting Colonel Gaddafi.  One of the applicant’s duties was to patrol the compound used by [Gaddafi]. He was working as a civilian and his duty was to observe. He was a member until October 2010;

   ·He is from a branch of the Warshefana tribe and his clan is [name deleted]. They live [in] an area named after them. Their tribe is known for its loyalty to former Prime Minister Gaddafi. Most of its male members were either occupying high ranks within the former regime or prominent members of the Libyan People Guard and Revolutionary Committees;

   ·He was rewarded for his activities by being granted a scholarship financed by the Libyan government to study abroad to obtain a university degree to make him eligible for a higher position in government;

   ·The chaos in Libya now has led to him being wanted by the militia for his previous involvement and affiliation with Gaddafi’s government;

   ·He travelled back to Libya in November 2012 after his father’s death to attend his funeral, despite the fact that it was a risk to his life. While he was there he got married as his father had asked for his cousin’s daughter to be his wife before he passed away. He stayed for about ten weeks. He was protected by his clan, brothers and cousins;

   ·In 2012 the situation was calm compared to the current situation. He said, ’the current political situation happening to our tribe with the militia coming to any house and destroying what they can. The country is lost, it is controlled by terrorists and militias’.

   ·Recently there were atrocities committed in Warshefana and the militias have intensified efforts to capture him or find him. His mother has told him that they have come frequently to ask her about him. A close friend in [Town 1] told him that there are orders to arrest him. His brother works in the militia and so provided the documents;

   ·He fears for his life from the militias.

   Departmental decision

10. A copy of the decision by the delegate of the Department dated [in] June 2015 was provided to the Tribunal by the applicant. The Department was not satisfied that the applicant had a well-founded fear of persecution as a pro-Gaddafi supporter.

    Evidence before the Tribunal

11. The first-named applicant appeared before the Tribunal on 12 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented. After commencement of the hearing it became apparent that the applicant could not understand the interpreter clearly and was not satisfied with the interpretation. The Tribunal adjourned the hearing until 11 December 2017.  The applicant was satisfied with the interpreter who was present on this second occasion. The evidence provided to the Tribunal is summarised below:

    ·The first-named applicant was born in [year] and raised in [Town 1], Tripoli. His parents came from the Warshefana tribe. In 2002/3 they moved to [Town 2] which is where the Warshefana reside on the border of Tripoli, and the applicant resided there until his departure from Libya in 2011;

    ·He has [brothers]. [Some] of them are living in [Town 2] with his mother. One brother is in [Country 1], and the other, [Brother A], is living in [Country 2]. [Brother A] supported the Gaddafi ideals and fought for the regime. He was shot in 2011 and went to [Country 2] to get treatment;

    ·Another brother, [Brother B], was in the Revolutionary Committee and was head of [a] section for [a government agency]. He travelled to [Country 1] on a [temporary] visa in January 2012;

    ·Another brother used to work in a [product] company, but the factory closed so that now he is unemployed. The second brother was [an occupation] [but] now is the recipient of a pension. The other brother used to work as [a different occupation]. [His employer] closed because it was [identified with] the Republic, but he gets a pension. He was asked if these brothers have been politically active or involved in militia since then, and he said they have not; 

    ·He has [sisters]. [Some] of them live in the broader area of [Town 2], and the [other] lives in another part of the Warshefana area. His sisters and their husbands have not been involved in political activity recently. The education system has been destroyed recently, so that his nieces and nephews cannot attend school;

    ·The militia, the Muslim Brotherhood, is in control in their region;

    ·When his father was alive, he was [an officer] in the army. His father was in the military his whole life. He travelled to [other countries] with the military. His job involved training new recruits. Every time they had Independence Day, they would not see him much as he would be running the celebration in Tripoli;

    ·Everyone around him in the Warshefana tribe supported Gaddafi while he was in power. Ninety-five per cent of his tribe supported the ideas of Gaddafi. When he grew up as a young man, he saw that Gaddafi was trying to educate people, and he supported his policies. He said that some of his father’s close friends were in the military;

    ·Asked if it was expected that he and his brothers would go into the military, he said that it was not. He believed in the revolutionary ideals of Gaddafi and served in the People’s Guard and Revolutionary Committee, as did his brother. However he had a good job but also supported the ideals of the Gaddafi regime. They were given freedom to choose by their father;

    ·He supported Gaddafi because of his educational policies, and also because he opposed Islamic extremism. Gaddafi put extremists in prison. The country was growing and developing under Gaddafi, and employment rates were high. Furthermore, students were sent overseas to study and then returned to work in the community;

    ·After he finished high school he graduated from [his college] in [year]. From January 2008 until January 2009 he worked in a private business, which he and his brother started, supplying [products] in Tripoli and surrounding areas. It was a [retail business]. His brother managed the business and he was the junior. Later he found a different job and left the shop, but his brother worked there and closed it during the war. From January 2009 until he came to Australia the applicant worked for [a company] in Tripoli. This was a full-time job in Tripoli;

    ·During this time he joined the Revolutionary Committee in his town. Asked how he had time to do this on top of his full-time work, he said his work was shift work.  He said that he would work three days, then would have three days free. When he was studying he attended seminars. When he graduated he joined the Committee and organised meetings and seminars to spread the theory of Gaddafi. Asked why this was important, he said that it was because he wanted to keep his country safe and keep extremists at bay;

    ·He joined the People’s Guard later on. His role was civilian not military. He guarded the Gaddafi compound, watching for suspicious activity. Asked why Gaddafi would use civilians for a security role, he said that the military guards were armed there but they needed civilians guarding them as well. They just watched for suspicious activity. Asked where the compound was located, he said that he was bad in directions. Asked to describe what it looked like, he said they only worked outside and it was a big place. There were very high walls. There were no gaps in the walls. He did not know what it looked like inside;

    ·Asked why he applied for a scholarship when he had completed his study in [year] and had a good job, he said that it was because he had the chance to improve himself. He wanted to study to enlarge his knowledge and improve his life. He applied for the scholarship from the Gaddafi institution. The scholarship was for government employees. Many people applied and were granted this scholarship. The terms were that the government paid for the travel and study, and then recipients returned at the end of the scholarship to work for the government. He studied for a [specified qualification];

    ·He was in Australia when his father died at the hands of the militia in 2012. His family told him that the militia took him by force from his home. A few days later they returned his body, by leaving him on the road. They did not find out who was responsible. Human life has no value in Libya. His father was kidnapped and killed by the militia for his involvement in Gaddafi’s regime as [an officer] in the army. The Tribunal put to him, in accordance with the procedures in s.424AA of the Act, that in his Departmental application, he listed his father as one of the persons not migrating with him, but did not provide details to the Department of his death at the hands of the militia, and nor was this information provided in his supporting statement. The Tribunal said that this may indicate that the information was added later to bolster his claim. The applicant said that in the first interview he was not asked for details about how his father died, and for this reason he did not include information about it, but he has later told the Tribunal about it. He said that he did provide a death certificate stating that he was killed by gunshots/scars of torture. He said that they had no other documents because his brothers have burnt all the papers relating to his involvement in the Gaddafi regime;

    ·Asked what he fears if he returns, the applicant said that he may not be alive if he returns, as he would not be safe from the militia. This was because he used to work for the People’s Guard and the Revolutionary Committee. The extremists run the country and do not want any brothers who supported the Gaddafi regime. Asked how his brothers can live there safely when they came from a family that supported Gaddafi, he said that they did not get involved in any military activity. However he is known because he was involved in the Revolutionary Committee and People’s Guard;

    ·The Tribunal put to the applicant that although he said that he has a genuine fear of serious harm, he was able to return to Libya in 2012 and remain there for 10 weeks, without anything happening to him. He said that when he returned in 2012, he went to Tripoli through the international airport. Now there is no airport to travel through. His nephews and nieces have friends in a particular tribe who were guarding the airport at the time, and they guided him to a car.  They did everything on his behalf. Asked if he had a genuine fear of returning there at the time, he said he was scared ‘100 per cent’. He went to attend the funeral of his father. His brothers told him not to return as it was not safe. He stayed in his father’s house and moved around relatives’ houses, hiding. He got married as had been previously arranged by his father. He did not do any preparation. He went to his wife’s parents’ house and was married, but there was no celebration. He said that he may also not have been harmed because in Libya people who are attending funerals are respected. He was protected by his clan, brothers and cousins. The Tribunal asked if his clan, brothers and cousins could protect him if he returned, and asked if he would not be safe, as his siblings have been safe, and a long time has passed since he was involved with Gaddafi. He said that he was by himself, and now he has his wife and children. He does not know how long his cousins could protect him. He said he needs a job to feed his family. If someone returns to Libya from overseas people think that they have money and he is also concerned his children will be kidnapped for money. The militia are still fighting Gaddafi supporters. The mentality is dissonance. If he walks in the street and anyone knows he supported Gaddafi, he would lose his life. His friends have told him this. His mother has told him that the militia have come to her house and asked about him and his brother from [Country 1];

    ·Asked where he obtained the various documents provided to the Tribunal, he said that his brother had a friend whose brother works for the militia. Asked why this man would provide documents if he was in the militia, he said that it was a secret deal, and they were close;

    ·The Tribunal questioned the applicant on how he was able to get a student visa in March 2014, and a scholarship from the government if he was wanted by the government. He was also asked how he was able to get his passport renewed at the Libyan embassy in Canberra in [2014]. He said that he does not have much to say but the previous regime sent the money to the embassy prior to the arrival of the students, and it was there already to be paid in instalments. He still owes money to them because the embassy had not paid, and so he has not been granted his certificate. The Libyan government later stopped the payments;

    ·Asked if he would still be involved in politics if he returned, he said that all the people who support Gaddafi are underground or overseas. However if it was possible without arrest, he would be the first to be involved.

    The applicants provided the following documents to the Tribunal:

    ·Marriage certificate;

    ·Translated ‘summons to appear’ from the National Liberation Army/[specified regiment] dated [in] 2014, to the first-named applicant, requiring him to appear before them or due procedures would be taken against him;

    ·Translated ‘warrant of arrest’ from the Ministry for Defence/Military Council in [Town 1] dated [in] 2012 to [another agency], requesting that they issue orders for arrest of the first-named applicant, a member of the Warshefana tribe, ‘known for its loyalty to the former regime’. The document states, ‘he is acting against the revolution while studying and residing in Australia according to information provided to us by one of our brothers studying there’;

    ·Death certificate for [a named person], [in] 2012, cause of death: gunshot/scars of torture, place of death [specified];

    ·Translated letter from [Agency A] to [another agency] dated [2011], referring them to [Brother A], who had participated in the Al Zawiya bloody confrontations, and was wounded in [with] gunshots and requesting that they cover the costs of his treatment in [Country 2];

    ·Translated note from the Liaison Centre of Revolutionary Committees/[specified division] dated [in] 2009 stating that the first-named applicant is a member of the Revolutionary Committee and is registered in [a specified register]. It states, ‘He is a revolutionary element who is committed to all revolutionary programs’;

    ·Translated note from the [specified section within the] People Guard, Tripoli, dated [in] October 2010 stating that the first-named applicant is one of the volunteers to the People Guard of Tripoli and is assigned to a mission starting from [earlier in] 2010.

    Evidence of other applicants

1. The second- and third-named applicants confirmed that they would be relying on the evidence of the first-named applicant.

   Independent country information

2. The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the assessment section below.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. In coming to a decision, the Tribunal has taken into account the evidence on the Department file, information provided to this Tribunal and independent country information about Libya.

4. A summary of the relevant law is set out in Attachment A.

5. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.

6. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70).

7. The assessment of the claims and evidence is set out below.

   Nationality

8. The first- and second-named applicants provided copies of their passports, and gave evidence that they were citizens of Libya. They also provided a birth certificate for the third-named applicant and claimed that he was a citizen of Libya. It was clear that the first-named applicant was familiar with the culture, history and geography of Libya, and the Tribunal accepts on the evidence before it that the applicants are citizens of Libya, and that Libya is the receiving country for the purposes of the complementary protection provisions.

   Findings of fact

9. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, anxiety about the outcome, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. All this is taken into account in these findings. The Tribunal has also utilised the published guidelines of the Administrative Appeals Tribunal in relation to credibility.[1]

   [1] AAT – Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015

10. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.    

11. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]). The applicant has provided a number of documents to support his claims. The Tribunal notes that, according to sources, the massive increase in illegal migration to Europe from Libya since the fall of the Gaddafi regime has led to a market for false documentation’.[2] There is nothing in the documents provided by the applicant which suggests that they are fraudulent. The applicant told the Tribunal he sourced the documents through a friend of his brother who worked for the militia in [Town 1]. While it seems difficult to understand why this friend would risk his position to provide these documents, the Tribunal accepts the applicant’s explanation that he provided them due to the closeness of the friendship. The Tribunal gives the applicant the benefit of the doubt and accepts that the documents are genuine, as the applicant’s account of his experiences appears credible and consistent with country information about Libya at the time.

    [2] Department of Foreign Affairs and Trade, DFAT Country Information Report, Libya, 4 April 2016

12. The Tribunal is satisfied, based on his oral evidence and the personal particulars provided, that the first-named applicant grew up in [Town 2], a region where the Warshefana tribe was a majority. He was able to provide details of his schooling, university and work history in this region.

13. The Tribunal is satisfied that the first-named applicant’s family were strong supporters of Gaddafi, and that most of the people in his region and tribe were Gaddafi supporters. Country sources refer to the area being strongly pro-Gaddafi.[3] The applicant was also able to articulate why he supported Gaddafi, evidencing a real interest in him, stating that it was because of his educational policies, and also because he opposed Islamic extremism. Further, he said that the country was growing and developing under Gaddafi and employment rates were high. He also said that he supported him as students were being sent overseas to study. There is also independent evidence that Warshefana people are perceived as Gaddafi supporters.[4] According to the Norwegian Refugee Council’s International Displacement Monitoring Centre (IDMC):

    Throughout his 42-year rule, Qadhafi relied on an extensive political network of patronage, delegating authority to the local level and thus systematically preventing the creation of national or central institutions. Qadhafi favoured Libya’s south (Fezzan) and the western region of Tripolitania. There he provided disproportional resources, granting privileged access to state institutions and security services to people from those regions that became his strongholds. At the same time Cyrenaica (eastern Libya) was systematically neglected.[5]

    [3] [Source deleted].

    [4] United States Institute of Peace, Perceptions of Security in Libya, 30 April 2015, – accessed 12 February 2018

    [5] IDMC, Libya: State collapse triggers mass displacement, 30 March 2015, – accessed 12 February 2018

14. The Tribunal is satisfied from the first-named applicant’s evidence that his father was [an officer] in the Libyan army during the Gaddafi regime. He was able to recall insignia on his father’s uniform and talk about his father’s responsibilities and duties. The Tribunal is also satisfied that his father died at the hands of militia in 2012, after the applicant had left for Australia. The Tribunal had some concerns about this evidence, as the applicant omitted to mention that his father had passed away in his application to the Department, or that his father was killed by the militia. He explained this to the Tribunal, somewhat unsatisfactorily, on the basis that he was concentrating on events which took place in relation to him directly and thought that by providing his father’s death certificate, his father’s death would be taken into account. His father’s death would appear to be a key element in his claim that he feared returning so it is surprising that he did not emphasise it to the Department. However the Tribunal has given the applicant the benefit of the doubt on this matter, given that it has generally accepted the substance of his evidence, and also because he did provide a death certificate for his father to the Department, which stated that he died from ‘gunshots, scars of torture’. This certificate does indicate that his father was murdered.

15. The Tribunal is also satisfied that the applicant’s brother, [Brother A], was shot in 2011, after fighting with pro-Gaddafi forces in the 2011 civil war. The applicant provided a copy of a letter from [Agency A] to [an agency] in [Country 2], requesting that [Brother A] be treated for gunshot wounds [received] while fighting in Al Zawiya, dated [in] 2011. The Tribunal accepts that his brother was shot, notwithstanding that the applicant told the Department the shooting took place in a different place, as it is possible that the letter included incorrect information, particularly as fighting was taking place in a number of different locations at the time. The Tribunal is also satisfied that another brother, [Brother B], is living in [Country 1] and was formerly also involved in the Revolutionary Committee and People’s Guard. A [Country 1] work permit for [Brother B] was provided by the applicant to illustrate that he has been granted a [Country 1] work permit.

16. The Tribunal is satisfied that the applicant was a member of the Revolutionary Committee. He provided a photocopy with an English translation of a document of the Liaison Centre of Revolutionary Committees, stating that he was a member of, and registered with [a specified register]. While there was some confusion at the Department hearing where the applicant appeared to be discussing [a different source][6] when asked about the [specified register] he had referred to in his application, the Tribunal accepts that he was on a list of some sort which listed names of committee members.  The applicant was also able to provide details of his responsibilities including attending university discussions in which they espoused the principles of Gaddafi’s democracy and spoke out against extremism, information which was consistent with country sources which reflect on the roles of the Revolutionary Committee.[7]

    [6] [Source deleted.]

    [7] Geneva Centre for the Democratic Control of Armed Forces, Challenges to Security Sector Governance in the Middle East, 1 July 2004

17. The Tribunal is also satisfied that the applicant was a member of the People’s Guard. He provided a copy of a document he claims is from the [specified section]. This document states that the applicant is a member of the People’s Guard. He was able to discuss his role in searching out corruption and extremist activity in government departments. The People’s Guard were involved in such activity.[8] The Tribunal is not satisfied that he assisted guarding Gaddafi’s [compound] in a civilian capacity. As discussed with the applicant, it would be usual for such a job to be a military one rather than a civilian duty. Furthermore, the applicant was unable to state where the compound was or what it looked like other than that it had big walls. The Tribunal does not accept that he would not know where it was, even if he was bad with directions as claimed, if in fact he had duties there. The Tribunal also does not accept that he would not be able to describe it if he in fact was responsible for guarding it. It appears from a variety of country sources that it was distinctive, with [specified design and] buildings.[9] Gummow and Hayne JJ observed in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191], ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

    [8] Ibid

    [9] [Source deleted.]

18. The Tribunal is satisfied that the applicant was granted a scholarship financed by the Libyan government and arrived in Australia [in] February 2011 on a student visa. While the applicant did not provide scholarship documents, he did provide oral evidence about the granting of this scholarship, which is consistent with country information about the scholarship program. He also provided a memorandum dated [in] 2016 (discussed in more detail in the following paragraph), which refers to his scholarship program.[10]

    [10] [Source deleted.]

19. The Tribunal is satisfied that the applicant’s name was provided to authorities for arrest in 2016 following the Libyan government’s 2014 decree (Resolution 13/2014) that former students travelling abroad should be investigated. A copy of Resolution 13/2014 of the General National Congress dated 21 January 2014 was provided to the Tribunal. The decree stated that scholarships would be terminated for those students sent to study abroad who led or took part in activities ‘inimical to the 17 February Revolution’. The Decree also stated that ‘ministries or sections to which these students belong shall send lists of their names to the General Prosecutor for investigation’. Human Rights Watch has commented that the decree was used to target students living abroad.[11] The applicant also provided a copy of a memorandum dated [in] 2016 from the [an agency] to the Commander of [a specified] Regiment, stating that ‘[quote deleted]’.

    [11] Human Rights Watch, Libya : Critical TV Bans Setback for Speech, 26 January 2014, – accessed 20 August 2017

    Refugee criteria – the applicant must have a genuine fear of serious harm

20. The Tribunal had some concerns as to whether the applicant has a genuine fear of serious harm given that he returned to Libya for the period of [November] 2012 to [February] 2013.

21. Despite his claim that the region was calmer in 2012 than it is at the current time, the evidence does suggest that anti-Gaddafi militia were targeting Gaddafi supporters at that time. For example, the International Crisis Group Report in April 2013 discusses how militia groups arbitrarily arrested anti-Gaddafi supporters:

    Most importantly, the state has been unable or unwilling to prevent individuals and armed groups from applying “victor’s justice”. Hundreds of armed groups that emerged victorious and refused to lay down their arms after the regime’s fall still function as parallel police forces, at times working against state interests. Although some armed groups nominally fall under the authority of a civilian or military prosecutor’s office – depending on whether they have been recognised by the interior or defence ministry – they tend to act both independently and arbitrarily. Such bodies for the most part also lack investigative capacity, and their members have never undergone formal police or legal training. Having compiled lists of “wanted” individuals– without reference to any judicial procedure – they have carried out arbitrary arrests, kidnappings and killings of alleged “anti-revolutionary” figures well after the end of hostilities. Indeed, more than 7,000 people captured by so-called revolutionary brigades during and after the 2011 conflict remain in arbitrary detention, for the most part in makeshift prisons. Armed groups continue to detain thousands accused of links to the former regime. Some were released after preliminary investigation, but many are being held without due process and without having seen a judge. Of the roughly 7,000 still in detention some 3,000 are said to be in facilities officially run by the state. The rest remain in makeshift prisons under the control of armed groups, mainly in Tripoli and Misrata.1 In May 2012, the NTC gave the interior and defence ministries a two-month deadline to refer to proper judicial authorities detainees “against whom there is sufficient evidence attesting that they have committed acts considered crimes under the law or otherwise set them free”. However, details were not fleshed out and, so far, it appears that local judicial districts have decided on their own how to proceed, forming screening committees in consultation with local authorities and armed groups.[12]

    [12] International Crisis Group (ICG), Trial by Error: Justice in Post-Qadhafi Libya, 17 April 2013, Middle East/North Africa Report N°140 , available at: – accessed 12 October 2017

22. Notwithstanding that there would have been a significant risk for him to return to the country in 2012 as Gaddafi supporters were being targeted, the Tribunal is satisfied, on balance, after discussing this with the applicant in some detail, that he has a genuine fear of serious harm were he to return to Libya in the reasonably foreseeable future. The Tribunal accepts his submissions that he returned for his father’s funeral and that he was very afraid at the time, but was determined to attend the funeral. The Tribunal accepts that he stayed at home and was protected by family, and that although he got married, it was without elaborate celebration. The Tribunal also accepts that some country sources suggest that there was an interim period of civil rule. This may have provided a window of opportunity for people such as the applicant to return without repercussion. One source suggests that Libya saw “an explosion of civil society” after the overthrow of Gaddafi.[13]

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

    Refugee criteria – the applicant must have a well-founded fear of persecution

23. 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.

24. A real chance in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility, however it may be well below a 50 per cent chance: Chan v MIEA (1989) 169 CLR 379.

25. 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.

26. The Tribunal is satisfied that the applicant has a real chance of serious harm for reasons of his imputed political opinion (Gaddafi supporter) for the reasons set out below.

27. Firstly, according to numerous reports, the security situation in Libya is extremely poor, and militias, who have undertaken numerous attacks on former Gaddafi supporters, are in control in large parts of the country. UNHCR, in its most recent Position on Returns to Libya, states that:

    UNHCR commends any measure taken by States to suspend forcible returns of nationals ...of Libya. UNHCR urges all States to suspend forcible returns ... until the security and human rights situation has improved considerably.[14]

    [14] UNHCR, Position on Returns to Libya – Update 1, October 2015, available at – accessed 20 August 2017

28. The Department of Foreign Affairs and Trade (DFAT), in its most recent report on Libya, comments on the lawlessness in the country by calling the security situation in Libya ‘dire’. DFAT states that the removal of the Gaddafi state apparatus left a major power vacuum that no single group or personality has thus far been able to fill:

    Free parliamentary elections held in July 2012 resulted in a political deadlock between two rival blocs, loosely described as ‘Islamists’ and ‘nationalists’ but more accurately representing a broader complex mix of regional, tribal and familial loyalties. Further parliamentary elections in June 2014 resulted in a victory for the ‘nationalists’. However, the ‘Islamists’ refused to recognise the results and occupied much of Tripoli, leading to the ‘nationalists’ leaving the capital and basing themselves in the eastern city of Tobruk. Both sides declared themselves to be the legitimate government of Libya, and, in July 2014, large-scale fighting broke out between the rival administrations, drawing in additional tribal factions and militias. The breakdown of security across the country has also enabled extremist groups, particularly Islamic State in Iraq and the Levant (ISIL, aka Daesh), to consolidate their presence in Libya. The Tobruk-based administration, known as the House of Representatives (HoR), has been Libya’s internationally recognised government, although the Tripoli-based entity, the General National Congress (GNC), continues to occupy the capital. In December 2015, the UN-backed Presidential Council announced the creation of a third entity, the Government of National Accord (GNA), aimed at ending the political division. On 31 March 2016, seven senior GNA members arrived in Tripoli, including its Prime Minister-designate. However, while the GNA has secured strong international backing, neither administration have committed to cooperating with or supporting it, and it is too early to tell whether its creation will lead to significant political change in Libya. 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.’[15]

    [15] Department of Foreign Affairs and Trade, DFAT Country Information Report: Libya, 4 April 2016

1. When the applicant first left Libya for Australia in 2011, Gaddafi was still in control of the country but was about to be thrown out of power. Gaddafi was captured, beaten and assassinated by local fighters loyal to the opposing National Transitional Council (NTC) in October 2011, at the climax of a civil war that had begun on 17 February of that year, when the applicant was studying in Australia.[16]

   [16] Al Jazeera, ‘Libya two years on: Revolution and devolution’, 17 February 2013,

2. Gaddafi’s execution was followed by a brief period of 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 …[17]

   [17] Al-Ahram Weekly, ‘Tribes and abductions’, 6 February 2014, >

   Other sources have also commented on the failure of state, and the decline in security in Libya since 2012:

   Libya’s postrevolutionary transition to democracy was not destined to fail.  With enormous proven oil reserves, the largest in Africa and the ninth largest in the world, many of them underexplored, Libya was singularly well endowed…Following the revolution, many Libyans dreamed—not unrealistically—of their country developing along the lines of Persian Gulf states with similarly small populations and abundant natural resources. Yet Libya has since become a failed state in what could be a prolonged period of civil war. Conflicts are occurring at the local, national, and even regional levels. Foreign powers are directly intervening militarily, as demonstrated by airstrikes on Tripoli by Egypt and the United Arab Emirates (UAE ) this past August, and more recent Egyptian involvement in military operations in Benghazi in October. Fissures have emerged along ethnic, tribal, geographic, and ideological lines against the backdrop of a hardening Islamist versus non-Islamist narrative. In August, Libyan foreign minister Mohamed Abdel Aziz acknowledged the country’s tailspin when he admitted that “70 percent of the factors at the moment are conducive to a failed state more [than] to building a state.” The United Nations has estimated that, as of August 27, 100,000 Libyan citizens were internally displaced and an additional 150,000 were seeking refuge abroad; in a three-week time period leading up to October 10, an increase in fighting forcibly displaced some 290,000 people across the country. The country now has two rival parliaments: the democratically elected House of Representatives (HOR) in the eastern city of Tobruk, comprising a majority of nationalists and federalists, and a resurrected General National Congress (GNC) in Tripoli, an entity dominated by Islamists and with a long-expired mandate. The United Nations, United States, Britain, France, Italy, and Germany recognize the HOR’s legitimacy. Turkish officials meanwhile have ignored the international consensus to boycott the Tripoli government, and have met with officials in Misratah and Tripoli. The two legislative bodies, meanwhile, have appointed opposing prime ministers who in turn have selected their own cabinets and separate chiefs of staff nominally leading their respective armed forces. While this Islamist versus non-Islamist, HOR versus GNC, division may appear neat on paper, Libya’s divisions on the ground are far more complicated. The country appears to be insurmountably riven, and Libyans themselves fear their country has gone the way of, at their respective low points, the Balkans, Lebanon, Iraq, or Somalia …

   In the northwest, political Islamists and hardline revolutionaries led by militias from Misratah and their regional allies unleashed war in July 2014 under the name Operation Dawn. Their opponents are anti-Islamist, closer to traditional Arab nationalists, led by fighters from Zintan in the western Nafusa Mountain region and their tribal allies, such as the Warshefana. With Operation Dawn came street fighting that turned the capital, Tripoli, into a ghost town for some fifty days and destroyed Tripoli International Airport in the process …

   Libyans are increasingly identifying with town and tribe over a shared notion of Libyan citizenry. As a result, there will be no neat division of the country… Libya could be rendered “into small emirates of no value.” Libya’s patchwork alliances are facilitating the devolution of any notion of the central state. In the northwest, alliances are geographically noncontiguous: Zintan (pro-Dignity) is surrounded by the pro-Dawn Amazigh towns of Jadu, Kikla, to an extent Nalut, and Zuwarah further north; in between Tripoli and Zintan is Gharyan (pro-Dawn), with the pro-Dignity towns of Bani Walid to its east and Aziziya to its north. In the Gulf of Sirte, federalists (pro-Dignity) control key oil export terminals and some small towns, but are limited to the west and east by Ansar al-Sharia in Sirte and Ajdabiya, respectively. In the northeast, Operation Dignity forces led by Haftar are contesting Benghazi, and are in al-Marj, Bayda, and Tobruk, while various other extremist groups occupy Benghazi proper, Darnah, and the Green Mountain region. The south represents the only area where any one group can exert contiguous geographic control with a certain degree of success: the Tebu have strengthened their positions and control of the southern border from Kufra in the southeast to Murzuq in the southwest, while the Tuareg control the southwestern border region. Both groups are connected to fellow tribesmen across Libya’s borders. But the Tuareg are not always united, and ethnically and tribally mixed towns like Sebha [Sabha] and Ubari cannot be neatly divided, and will likely continue to see continued intercommunal bloodshed.[18]

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

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

   [19] International Crisis Group, Libya: Getting Geneva Right, 26 February 2015,

3. Secondly, the applicant came from a family of pro-Gaddafi supporters. His father was [an officer] in the military, who lost his life to the militia. One of his brothers fought in the civil war and another brother was active, as was the applicant, in the Revolutionary Committee and People’s Guard.

4. The Department of Foreign Affairs and Trade have stated as follows in relation to attacks on Gaddafi supporters:

   According to a September 2014 report by Human Rights Watch, the failure of Libyan authorities to conduct investigations or prosecute the perpetrators of the killings has fostered a culture of impunity that has fuelled further abuses. DFAT 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.[20] ... This animosity is based in particular on the conduct of the regime following the outbreak of conflict in 2011. Between February and August 2011, when Tripoli fell, pro-Gaddafi forces committed serious violations of human rights law and the laws of war. Gaddafi’s forces repeatedly launched indiscriminate attacks using mortars, artillery and rockets into civilian areas, and laid tens of thousands of anti-personnel and anti-vehicle mines. Thousands of Libyans perceived to be against the regime were detained without charge, and were often subjected to torture and mistreatment in detention.

   After the fall of the Gaddafi regime, the Ministry of Interior (under the control of the NTC) issued Decree 388 (2011) which granted local Supreme Security Committees the right to arrest, detain and interrogate suspects. This decree provided a legal basis for the arrest and detention of suspects by committees created by civilian or military councils and militias at the local level. The 2012 report of the UN Commission of Inquiry on Libya concluded militias executed and tortured to death perceived Gaddafi loyalists, and were liable for charges of the war crime of murder or arbitrary deprivation of life. As of the date of publication, there were no known prosecutions related to killings by militias.

   In addition to taking captive individual suspects, armed militias targeted entire communities and ethnic minority groups accused of having supported Gaddafi forces and committed crimes during the conflict

   Although Law 29 on Transitional Justice (2013) required authorities to charge release all detainees‘affiliated with the previous regime’ by 2 March 2014, Amnesty International reported on 3 March 2014 that this deadline had not been fully met and thousands of conflict detainees remained in detention centres across the country. Amnesty International also reported that Libyan courts had faced difficulties in processing cases of conflict detainees due to public and militia pressure, with prosecutors, judges and lawyers defending perceived pro-Gaddafi loyalists facing intimidation, threats and violence.

   In an April 2013 report on the Libyan justice system, the International Crisis Group reported that in many cases, presumed ties to the Gaddafi regime appeared to have been little more than pretexts to retaliate against people against whom the armed brigades held personal or professional grudges, or as means of extorting a ransom. On 29 July 2015, a mass trial of 28 former senior regime figures resulted in 24 being convicted of crimes relating to the Gaddafi regime’s conduct during the 2011 conflict. Nine of the defendants, including Gaddafi’s son Saif al-Islam Gaddafi, were sentenced to death in a trial widely criticised by international observers. In the aftermath of the verdict, it was reported that there had been a number of small-scale pro-Gaddafi rallies in several Libyan cities, including Benghazi.

   DFAT assesses that those who were, or are perceived to have been, high-ranking officials in the Gaddafi regime (such as ministers, senior bureaucrats, military personnel or diplomats), or who had close associations with the Gaddafi family, or those who were associated with the Libyan security forces during the 2011 conflict, face a high risk of both societal and official discrimination throughout Libya. This may include being illegally detained, beaten or tortured; having death threats made against themselves or their families; or being killed. However, DFAT assesses that it is unlikely that a Libyan who was employed by the government at a low level unrelated to the security establishment would face discrimination as a result.The Gaddafi regime was in power in Libya for 42 years, from 1969 to 2011. Over such a long period of time, the majority of the population would have either worked for, had some association with, or had a member of the family who worked for, or had an association with, the regime. DFAT assesses that it is unlikely that a Libyan with a low-level association with the regime (other than the occupations listed in 3.68) would face discrimination as a result of this association. On 29 July 2015, a mass trial of 28 former senior regime figures resulted in 24 being convicted of crimes relating to the Gaddafi regime’s conduct during the 2011 conflict. Nine of the defendants, including Gaddafi’s son Saif al-Islam Gaddafi, were sentenced to death in a trial widely criticised by international observers.[21]

   [20] Department of Foreign Affairs and Trade, DFAT Country Information Report: Libya, 4 April 2016

   [21] Department of Foreign Affairs and Trade, DFAT Country Information Report: Libya, 4 April 2016

5. The applicant was asked to comment on this DFAT Report, and in particular the suggestions that not all pro-Gaddafi supporters are targeted, particularly not those who were employed by the government at a low level.  He responded that there was a lot of anger against Gaddafi, as reflected in the way his father was killed. He said that the militia would not care if he had a low or high level of support for Gaddafi. If he was a supporter, he would be seriously harmed.

6. Some very recent country information suggests that there is a lessening of hardline antagonism towards ex-Gaddafi supporters. Media reports in July 2017 reported on the release of Saif al-Islam Gaddafi[22], and the call by the United Nations backed Prime Minister, Fayez al-Sarraj, for Gaddafi supporters to return to the country to help it build and grow. Furthermore reports have suggested that the prime minister has met with Khalifa Haftar, the rival military commander who controlled the east, in order to agree to a ceasefire. A BBC World News report discussed this meeting as follows:

   They are aiming to end the conflict which has engulfed the country since Col Muammar Gaddafi was ousted in 2011.

   French President Emmanuel Macron said the rivals could soon be seen as symbols of Libya's reconciliation.

   "We commit to a ceasefire and to refrain from any use of armed force for any purpose that does not strictly constitute counter-terrorism," they said in a joint, 10-point statement.

   The document also pledged to move towards holding elections - which could take place as early as 2018 - and "building the rule of law" in a country struggling to control the armed groups which have stepped into the power vacuum left by the Gaddafi regime. [23]

   [22] The Guardian, 6 December 2017, – accessed 5 January 2018

   [23] BBC World News, ’Libya crisis rival governments commit to ceasefire’, 25 July 2017, >

   The applicant commented on these developments, suggesting that the country needs more time before the situation would improve.

7. The Tribunal accepts, given the volume of independent country information about this subject, that it is too early to draw conclusions on any progress. A recent United Nations Security Council Report[24] has stated that over a year after signing the Libyan Political Agreement, and following months of a political stalemate, efforts continue to facilitate its implementation. The Report states that the overall security situation has deteriorated significantly with escalating clashes in Tripoli, fighting in the oil crescent region and rising tensions in the Sabha area.  Potential for further military escalation remains, according to the Report, due to largely unaddressed structural political issues and the multiplicity of armed actors on the ground with conflicting agendas. The Report states that Libya is at risk of a return to widespread conflict.

   [24] United Nations Security Council, Report of the Secretary-General on the United Nations Support Mission in Libya, 4 April 2017

8. The Tribunal has taken into account the comments in the Department of Foreign Affairs and Trade Report that not all pro-Gaddafi supporters are targeted, as well as progress in the form of release of Gaddafi’s son and the encouragement by the Prime Minister for Gaddafi supporters to return. The Tribunal notes that these factors may reduce the likelihood of harm, however the Tribunal is still satisfied that the chance of harm is substantial, even if it does not amount to a fifty per cent chance. The applicant was involved in the Revolutionary Committee and People’s Guard, and has come to the attention of the authorities while studying abroad, as demonstrated in the warrants provided. The DFAT Report does state that militia have tortured and executed perceived Gaddafi loyalists, and that thousands of pro-Gaddafi supporters remain in prison. DFAT assesses that those who were, or are perceived to have been, high-ranking officials in the Gaddafi regime (such as ministers, senior bureaucrats, military personnel or diplomats) face a high risk of both societal and official discrimination throughout Libya. This may include being illegally detained, beaten or tortured; having death threats made against themselves or their families; or being killed. The Tribunal is satisfied that the applicant may be perceived as having these connections, particularly when the factors discussed below are taken into consideration.

9. Secondly, the applicant’s home region is Warshefana, and this means that it is likely that a pro-Gaddafi opinion would be imputed to him. The DFAT Report has stated that in the past armed militias targeted entire communities and ethnic minority groups accused of having supported Gaddafi forces and committed crimes during the conflict.[25]

   [25] Department of Foreign Affairs and Trade, DFAT Country Information Report: Libya, 4 April 2016

10. The Warshefana region has been the location of serious conflict. In 2014 there was a siege by armed militia of Warshefana when at least 70 residents were killed. Militia also blocked the entry of food and medicine. An article in the Monitor states that the residents were regarded as loyalists to Gaddafi’s regime.[26] The Libya Observer contains numerous articles from the last two years about intense fighting between local armed groups and forces led by the Commander of the Western Military Zone, Osama Jowaili. A number of these articles refer to armed pro-Gaddafi groups in the region and the arrest of members of these groups.[27] Further, a recent media report indicates that there is significant conflict in Warshefana and that pro-Qaddafi leaders continue to experience harassment and arrests:

    The Tripoli-based Rada Special Deterrence Force has arrested six people in various parts of the Warshefana district. It accuses them of murder and kidnapping.

    Rada spokesman Ahmed Ben Salem told the Libya Herald it was part of a wider operation that has been ongoing for the last few months to clear the district of criminals.

    “Together, with the security bodies, we are trying to make the Warshefana [district] safer. We arrested these men for their roles in kidnapping and murder,” he said.

    “We are also stopping people from selling drugs and stealing cars, and have increased security along the highway [from Tripoli] to Wirshefana,” he added.

    Rada has its operatives in the district despite the apparent public divide between it and the Wirshefanis, among whom there remains a significant number of Qaddafi-regime sympathisers. Two months ago, a pro-Qaddafi militia leader from Brak Al-Shatti, Mabrouk Ahnish, was arrested by Rada allies in the area along with an Sudanese military commander, Rifqa Al-Sudani,  and handed over to Rada. They are still being held at Mitiga. Their capture led to Ahnish’s brother trying to blackmail Rada into freeeing him by cutting off water supplies to the capital and surrounding areas.

    The two were reported to have had a force of some 120 Sudanese fighters, allegedly to be used along with Wirshefana allies in a pro-Qaddafi assault on Tripoli.[28]

    [26] Al-Monitor,’Dozens killed in Tripoli suburb under siege’, 14 September 2014, – accessed 10 October 2017

    [27] The Libya Observer website, – accessed 11 February 2018

    [28] Libya Herald, type="1">

    Thirdly, the applicant was the recipient of a government scholarship under Gaddafi, and there is evidence that those who were on scholarships have been targeted by the authorities and militia. Human Rights Watch has indicated that on 24 January 2014 the Libyan parliament passed a decree discontinuing scholarships for students studying abroad for “taking part in activities inimical to the February 17 revolution”. This decree, Resolution 13/2014, according to Human Rights Watch “calls on Libyan embassies abroad and others to draw up lists of names and refer them to the Prosecutor-General for prosecution”.[29] A copy of Resolution 13/2014 was provided by the applicant to the Tribunal. It decreed that:

    scholarships shall be terminated for those students sent to study abroad who led or took part in activities inimical to the 17 February Revolution ... Ministries or sections to which these students belong shall send lists of their names to the General Prosecutor for investigation … salaries and bonuses of Libyan employees living abroad who led or took part in activities inimical to the 17 February Revolution shall be discontinued and lists of their names sent to authorities.[30]

    [29] Human Rights Watch, Libya : Critical TV Bans Setback for Speech, 26 January 2014, – accessed 20 August 2017

    [30] General National Congress, Libya, 24 January 2014

    The Tribunal also notes the following concerns reported by Human Rights Watch over the Libyan government resolution targeting students studying abroad:

    Libya’s government also passed Resolution 13/2014 on January 24, discontinuing scholarships to students studying abroad and salaries and bonuses to Libyan employees, for “taking part in activities inimical to the February 17 revolution,” which is widely understood to encompass statements and protests against the current government. It calls on Libyan embassies abroad and others to draw up lists of names and refer them to the Prosecutor General for prosecution.[31]

    [31] Human Rights Watch, Libya: Critical TV Bans Setback for Speech, 26 January 2014, accessed 1 June 2016

    The applicant has provided evidence that his name was provided to the authorities as a student who had studied abroad and been involved in pro-Gaddafi activities. He provided a copy of a memorandum dated [in] 2016 from the [specified agency] to the Commander of [a specified] Regiment, stating that ‘as a part of our endeavour to protect the Revolution of 17^th February against the enemy … we are looking forward to arresting [the name of the applicant], who according to the information we have received is residing abroad for the purposes of study’.

    Fourthly, there are also difficulties getting into Libya safely. Tripoli airport was seized by Islamist forces in 2014[32] and efforts to reopen it have generally been either unsuccessful or short-lived.[33] While the airport re-opened in July 2017, there are only limited flights. DFAT advice has indicated that Benghazi and its airport have frequently been targeted by forces hostile to the interim government.[34] Misrata airport has evidently been under the control of Islamist factions traditionally opposed to the tribal confederacy that supported Gaddafi but it too has been attacked and suffered periods of shutdown, and the last foreign airline operating in Libya discontinued all flights there earlier in 2014.[35] Meanwhile, there is evident ongoing conflict between tribes and power structures in the east and tribes and power structures in the west, such as those in control of Tripoli, making the prospect of passage by returnees to home regions through Tripoli highly dangerous.[36] DFAT Travel advice, January 2017, states ‘do not travel to Libya’, and that Australians should depart. According to DFAT:

    the political situation in Libya remains volatile, as work towards the establishment of a Libyan Government of National Accord (GNA) continues. The arrival of the Presidency Council of the GNA in Tripoli on 30 March 2016 was an important step towards political stability, but intense fighting is still continuing in a number of areas, including Tripoli.’[37]

    [32] BBC World News, ‘Libya crisis: Tensions rise as Tripoli airport seized’, 24 August 2014, – accessed 20 August 2017

    [33] Reuters, ‘Armed clashes in Libya's Tripoli, airport shutdown’, 16 November 2014, – accessed 20 August 2017

    [34] DFAT Travel Advice: Libya, 9 July 2015, – accessed 20 August 2017

    [35] BBC World News, ‘Turkish Airlines stops Libya flights to Misrata’, 6 January 2015, – accessed 20 August 2017

    [36] Libya Prospect, ‘Interesting chapter in the absurdity of the Libyan scene’, 28 June 2016, – accessed 20 August 2017

    [37] DFAT Travel Advice, Libya, 23 January 2017, – accessed 7 July 2017

    Fifthly, the applicant has indicated that if he returned to Libya, he would continue to take part in political activity, if he was able to do so freely. The DFAT Report has indicated that militia will not tolerate those who speak out against them. DFAT 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.

    Finally there is evidence of a warrant for his arrest. The applicant provided a copy of a document he claimed was a warrant for his arrest, issued by the ‘National Liberation Army/[specified regiment] on [a date in] 2014. The warrant required the applicant to appear before them. Another document titled ‘warrant for arrest’ was a memorandum from the Ministry of Defence/Military Council in [Town 1] to [another agency], asking them to issue orders for arrest of the applicant.  

    The Tribunal has taken into consideration the fact that the applicant was granted a scholarship in [2014] and his passport was renewed by the Libyan embassy at the time. This indicates that he was not of adverse interest to the authorities at the time. The Tribunal notes that Resolution 13/2014 had only just been passed and that implementation may have taken some time. Given that the applicant’s name was provided to authorities pursuant to Resolution 13/2014 later, and taking into account his family background and the warrants for his arrest, the Tribunal is satisfied that his name may well continue to be on official lists when he returns to Libya, and that this may lead to serious harm, such as arrest. The Tribunal also has some concerns about how the applicant’s siblings could live in Libya safely. The applicant has commented, validly perhaps, that there is no real security, but they had not been arrested or seriously harmed because they had not been involved in any pro-Gaddafi or other political activity.

    Considering all the factors above cumulatively, the applicant’s past involvement with the Gaddafi regime, the fact that he came to Australia on a Gaddafi scholarship, the warrant for his arrest, the general security in the country and particularly Warshefana, and the fact that pro-Gaddafi supporters are still targeted, the Tribunal is satisfied that there is a real chance of serious harm were he to return to Warshefana in the reasonably foreseeable future.

    The Tribunal is not satisfied, given the country sources referred to above, that it would be safe or reasonable for the applicant to relocate to a different part of the country. Travel itself is dangerous and the danger from the militias exists across the country. Furthermore it would not be reasonable, in the sense of practicable, for the applicant to relocate with his wife and child, given the need for them to have family support.

    The Tribunal is not satisfied that the applicant could access state protection given the lawless and divided state of the nation at the current time.

    The Tribunal is not satisfied on evidence before it that the applicant has a right to enter and reside in a safe third country.

    The Tribunal is satisfied therefore that the first-named applicant has a well-founded fear of persecution for reasons of political opinion were he to return to Libya in the reasonably foreseeable future.

    CONCLUDING PARAGRAPHS

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

    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 the second- and third-named applicants are the wife and [child] of the first-named applicant, and 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. 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

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

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

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

    Jane Marquard
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

    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

    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).

    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.

    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.

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

    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.

    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.

    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.

    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.

    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.

    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

    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’).

    ‘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.

    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

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

    Member of the same family unit

    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.