1511316 (Refugee)

1511316 (Refugee) [2017] AATA 2840 (13 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511316
COUNTRY OF REFERENCE:                  Libya
MEMBER:Christopher Smolicz
DATE:13 November 2017
PLACE OF DECISION:  Adelaide
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 13 November 2017 at 2:42pm

CATCHWORDS
Refugee – Protection Visa – Libya – Imputed political opinion – Supporter of Muammar Gaddafi – Libyan Revolutionary Committee – Al Linge Al Thawriah – Senior academic – Ethnicity – Mashashiya – Fear of persecution – Fear of violence – Militia groups – Lack of state protection – Third country protection – Arab Maghreb Union
LEGISLATION
Migration Act 1958, ss 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
WAGH v MIMIA (2003) 131 FCR 269
Applicant C v MIMA [2001] FCA 229
Kola v MIMA [2001] FCA 630
MIMA v Applicant C (2001) 116 FCR 154
Kola v MIMA (2002) 120 FCR 170
Suntharajah v MIMA [2001] FCA 1391
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

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).
The applicants who claim to be citizens of Libya, applied for the visas [in] October 2013 and the delegate refused to grant the visas [in] August 2015.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Issue
The first issue in this case is for the Tribunal to determine whether the first named applicant (the applicant) satisfies one or more of the criteria for a protection visa prescribed by s.36(2) (well-founded fear of persecution).
Specifically, the applicant claims to fear persecution from Libyan militants because of his imputed political opinion as a supporter of the former Libyan leader Colonel Muammar Gaddafi (Gaddafi). If the answer to that question is in the affirmative the second issue for the Tribunal to determine is whether the applicant has a right to enter and reside in a third country apart from Australia as prescribed by s.36(3) (third country protection). In particular the issue in this case is whether the applicant has a right to reside in another country within the Arab Maghreb Union (UMA) along with Algeria, Morocco, Mauritania and Tunisia. If s.36(3) applies the third issue the Tribunal must then determine is whether one or more of the qualifications contained in sub-sections (4), (5) and (5A) limit the operation of s.36(3) (qualifications).
Credibility of claims
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicants on the basis of the material before it, pursuant to s.425(2)(a) of the Act.
The applicant’s credibility was not in issue before the delegate. The Tribunal also finds that the claims and evidence presented by the applicant in support of his application are supported country information detailed below. The Tribunal has decided to wholly accept the applicant’s evidence and claims.
Background
The applicant is [age] years old. He was born in [City 1], Libya. He arrived in Australia on [in] March 2011 with his wife (the second named applicant) and his three children (third, fourth and fifth applicants).
The applicant travelled to Australia as a holder of [a temporary visa]. [In] May 2012 the applicant was granted a [different temporary visa]. The visa was valid until [December] 2016. The second, third, fourth and fifth applicants travelled as his dependants.
The applicants travelled to Australia as holders of passports issued by The Great Socialist People’s Libyan Arab Jamahiriya (Libya). The Tribunal accepts that the applicants are citizens of Libya and has accessed their claims against Libya as the country of reference.
The Tribunal is satisfied that the second, third, fourth and fifth applicants are members of the same family and are dependent on the first applicant.
The Tribunal finds that the applicant’s fear of persecution in Libya needs to be assessed against his tribal background, his education and employment as a senior academic in Libya during the Gaddafi regime.
Education and Employment history
The applicant attended high school in [City 1] and completed a [degree] at [University 1] in 1994. He worked as [Occupation 1] at [an organisation] in [City 1] from 1995 until 2008.
In the period May to November 1998 the applicant travelled to [another country] for six months for [training].
In the period November 2000 to October 2004 the applicant travelled [to another country] where he [undertook further studies].
From October 2004 the applicant worked as [Occupation 2] at [University 1]. He held the positions of [details of position] and subsequently [a higher position].
In July 2008 he resumed his [original position] in [University 1] until he departed Libya in March 2011 and travelled to Australia.
In Australia he undertook a [further studies] in [his field] at [University 2]. The applicant was awarded a scholarship from the Libyan Government that included financial support for his family in Australia.
The applicant completed his [studies] in Australia and is working as [Occupation 3] at [an organisation] within the [details of occupation].
Summary of substantive claims
Next, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s protection interview and his statements of claim and statutory declaration dated [in] October 2017.
The applicant submits that [certain universities] enjoyed [recognition] for [longstanding] political support for Gaddafi. As a senior academic in Libya he was required to be member of the Gaddafi-era Revolutionary Committee (RC).
The applicant declared that he was awarded [a senior position] at [University 1] due to his personal and tribal loyalty to the Gaddafi regime and because he was a longstanding member of the Al-Ligne Al Thawriah since 1989.
The applicant submitted that during the Gaddafi era most academic staff in Libya were members of Al-Ligne Al Thawriah and he was required to promote Gaddafi’s regime as part of his [activities] at University. His opponents view such appointments as politically motivated aimed at influencing university students with pro-Gaddafi propaganda.
The applicant declared that [in 2010] he completed his military training with the Al-Ligne Al Thawriah military wing. He claims that military members of the Al-Linge Al Thawriah remain a distinct target of the militias and Islamists because they are viewed as having “blood on their hands” and as part of the inner circle of Gaddafi’s regime.
The applicant declared that he has never met Gaddafi but university staff would conduct Al-Ligne Al Thawriah meetings and he would educate students about Gaddafi’s regime. The applicant said that he was attracted to Gaddafi’s regime because Gaddafi unified Libya, provided security, and his policies prevented problems with Islamic fundamentalists.
The Tribunal notes that country information referred to in the delegate decision confirms the applicant’s claims that RC membership was a prerequisite for teaching work in Libya. Country information confirms the existence of a RC in Libya called Al-Ligne Al Thawriah, and that Gaddafi manipulated the education system to support his regime. Country information also confirms that study of Gaddafi’s regime was compulsory for older students in Libya and a system of local governance forming part of Gaddafi’s model of democracy was implemented under his regime.[1] It is reported that one of the most pressing matters in post Gaddafi Libya is the fate of those teachers close to the former regime.[2]
[1] United Nations Human Rights Council, "Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya", United Nations Human Rights Council, 01 June 2011, CIS20788, “Libya’s Faustian Bargains: Breaking the Appeasement Cycle”, Atlantic Council, 1 May 2014, CIS28124, Ibid. Washington Post.
[2] “In Libya, education without the Green Book”, Washington Post, 21 November 2011: >
The applicant claims that as former members of the Al-Ligne Al Thawriah and senior academic he will be subject to Libya’s Political Isolation Laws (PIL) which apply to high profile members of the Gaddafi regime or those deemed to occupy politically motivated public sector appointments.
The Tribunal has had regard to the following country information which supports the applicant claim that the PIL are aimed at vetting Libyan citizens to determine their past loyalties and seek retribution:
The PIL’s enactment represented a far-reaching attempt to prevent members of the regime of Muammar Qaddafi from holding public office during the country’s transition. But the decision also appeared to fit a precarious pattern of post-conflict accountability in Libya, which has been characterized by acts of vengeance and one-sided justice aimed at anyone associated with the defeated regime. The passage of the law also reflects the current state of political instability in Libya wherein decisions are politically motivated and often forced at the barrel of the gun rather than agreed upon through public consultation and democratic decision-making.[3]
[3] Libya’s Political Isolation Law: Politics and Justice or the Politics of Justice? Kertsen M, London School of Economics, Feb, 4, 2014 See also >
The applicant declared that senior academics and members of the RC have been executed in Libya. He claims his fears have been heightened by the ongoing reports of detention and execution of [senior university lecturers] for being supporters of the Gaddafi regime.
In support of his claims the applicant provided an original and translated report of the recent kidnaping in Libya of his close friend [Mr A], in [2017]. The applicant claims that [Mr A] had the same political and professional profile as him and was also a member of the RC and former [academic position] at [University 1]. [Mr A] was also a former overseas student who was studying pharmacy [in another country] who returned to Libya after his graduation in 2013. The Tribunal finds the reports credible and notes that [Mr A] was employed [in the position the applicant described] at [University 1] and [studied overseas as claimed by the applicant].[4] The applicant provided a further seven original and translated reports referring to the death of university colleges and former members of the RC in Libya in support of is claims.
Recipient of Study Abroad Scholarship
[4] [information deleted]
The Tribunal also finds that the applicant’s claims need to be assessed against his background as a former recipient of a Gaddafi scholarship which enabled him to travel and study in Australia. As detailed above the applicant was awarded the scholarship by the Gaddafi regime that included financial support for his family in Australia.
The Tribunal has had regard to DFAT’s country information report provides the following information on former recipients of a study abroad scholarship:
3.70 For several decades, Libya has utilised its oil wealth to provide scholarships to enable Libyan graduate students to study abroad. The scholarships program, run by the Ministry of Higher Education, has sent around 5,700 predominantly graduate students abroad annually to study in foreign universities. After Gaddafi’s fall, the program was extended to include former rebel fighters through the Warriors Affairs Commission, established at the end of the 2011 conflict to transition former rebel fighters into civilian life. As of July 2015, a combined total of approximately 20,000 Libyan students were studying around the world on the scholarships, including in the United Kingdom, United States, Canada and Australia.
3.71 The scholarships program has experienced considerable difficulties in recent years. The United Nations froze Libyan assets during the 2011 conflict, precluding the payment of monthly allowances, health insurance, and tuition fees. While payments resumed at the conclusion of the conflict, growing instability in late 2013 again caused payments to become sporadic, with the problem exacerbated considerably following the renewed outbreak of conflict in July 2014. The scholarships program was also criticised for declining standards in the selection of participants, with some overseas institutions reporting that students had arrived without the necessary English language abilities or skills to successfully undertake their study.
…
3.73 In February 2014, Amnesty International expressed concerns about Decree 13 (2014), issued by the parliament the previous month, which aimed to punish Libyan students and state employees abroad who had engaged in ‘activities hostile to the 17 February Revolution’ by withdrawing their scholarships, salaries and bonuses. The decree also instructed embassies and relevant authorities to submit names to the General Prosecution for interrogation. Amnesty International expressed fears that the broad and vague provision included in the decree may be used to prosecute Libyan individuals who publicly expressed their opposition to the uprising and participated in protests and demonstrations supporting Gaddafi’s rule during their time abroad.
3.74 DFAT is aware of one case where a former scholarship holder has been arrested on return to Libya. Moad al-Hnesh, a 34 year old studying mechanical engineering in the United Kingdom, was arrested by a militia on his return to Libya in 2012. Al-Hnesh was reportedly detained after a group of Libyan students whom he had met in the UK filed a complaint against him with the military council, accusing him of participating in demonstrations and publishing false information on the situation in Libya during the 2011 conflict. Amnesty International reported in September 2013 that al-Hnesh had been charged under Article 178 of the Penal Code, which criminalised any activities of a Libyan abroad perceived to be against the interests of the state, and which carried a life sentence.
3.75 A representative of a leading international organisation told DFAT in September 2015 that they believed it was unlikely that the recipient of a Study Abroad Scholarship would be targeted solely on this basis if they were to return to Libya, regardless of whether they had received the scholarship during the Gaddafi regime or afterwards. The source noted the very large numbers of recipients who had received scholarships over the decades, and that the benefits that previous scholarship holders had provided the country on their return as a result of their studies abroad were widely acknowledged. DFAT assesses this advice to be credible.
3.76 DFAT assesses that an ordinary recipient of a Study Abroad Scholarship faces a low risk of societal or official discrimination or violence upon return to Libya. Students who participated in pro-Gaddafi protests and demonstrations during the 2011 conflict, however, may be at risk of arrest, including by armed militias.
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.[5]
[5] Human Rights Watch, Libya: Critical TV Bans Setback for Speech, 26 January 2014, accessed 1 June 2016
The applicant submitted that he remains staunchly opposed to the militias who continue to control the majority of the Libyan territories. He submits that the militias seek to eradicate Libya of all political and religious opposition and impose their own political agenda. The applicant submits that his profile as a former [senior academic], coupled with his membership of the Al-Ligne Al Thawriah will put him at odds with the current political regime.

The applicant submits that as an academic he supports moderate Islam and remains vehemently opposed to the fundamentalist Islamists militias who are vying to radicalize the Libyan society and impose sharia law.
Mashashiya tribe
The applicant is a Sunni Muslim of Al-Mashashiya ethnicity (Mashashiya tribe). The Tribunal also finds that the applicant’s fear of persecution needs to be assessed against his profile as member of the Mashashiya tribe in Libya. Reports confirm that the Mashashiya tribe has been supporters of the Gaddafi regime. Reports confirm that since the end of the civil war in 2011, Libya has witnessed a bitter political divide and tribal tension.[6]
[6] Libya on alert after murder of four tribal peacekeepers, Mustafa Fetouri, October 9,2017 Al-Monitor >
DFAT’s country information report provides the following information regarding the Mashashiya tribe in Libya:
3.31 Between March and June 2011, anti-Gaddafi rebels targeted the Mashashiya for their alleged support for the regime during the siege of the town of Zintan. After capturing a number of villages and towns around Zintan, the rebels forcibly displaced Mashashiya people from the area. Majority Mashashiya towns were looted and witnessed significant destruction. Roughly 10,000 Mashashiya have been prevented from returning to their home towns, with most living in protracted displacement in Sgeiga, the Nafusa Mountains, or Tripoli. Ongoing clashes in 2012-3 in Misdah and Sgeiga between the Mashashiya and rival tribes led to a further deterioration in the situation facing displaced Mashashiya, with dozens killed or wounded and thousands forced to flee the two towns.
3.32 According to Amnesty International, displaced Mashashiya continue to be at risk of retaliatory attacks, including abductions, and face serious restrictions to their freedom of movement. Actual or perceived former Gaddafi loyalists, and displaced Mashashiya in general, have been subjected to retaliatory attacks, harassment, intimidation, discrimination, and other abuses.
3.33 DFAT assesses that the Mashashiya face a high level of societal discrimination and violence, particularly by Zintan militias, due to their perceived association with the Gaddafi regime. This may includebeing illegally detained, beaten or tortured; having death threats made against themselves or their families; or being killed. While this treatment can occur throughout Libya, it is particularly likely to occur in areas where the Zintan militias have a strong presence. DFAT assesses that Mashashiya face a high level of official discrimination due to the ongoing failure of Libyan authorities to provide them with protection from violent attacks and to enable them to return to their homes. [7]
Security situation
[7] DFAT Country Information Report Libya 4 April 2016
The applicant submits that he fears his safety and the safety of his family members due to the prevalence of Islamic extremists who subject the population to radical and militant ideology. He fears rival militias who continue to engage in power struggles and in the process endanger the entire population in the area of their control. He claims that the current situation in Libya is unlikely to significantly alter in the foreseeable future as the country continues to be paralysed by dysfunctional central administration which exercised limited control over Libyan territories.
The Tribunal has had regard to DFAT’s country information report regarding the security situation and finds that there is a complete absence of law and order in Libya. Specifically the Tribunal notes that DFAT has reported:
2.33 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.
…
2.38 The UNHCR reported in October 2015 that the current conflict has uprooted and displaced over 435,000 Libyans, with Benghazi the worst affected area. According to the report, an estimated 1.9 million people require urgent humanitarian assistance to meet their basic health care needs, and access to food is a major problem for approximately 1.2 million people, particularly in Benghazi and the east. Power cuts are endemic in many areas of the country. The UNHCR also reported that there have been many instances of rape, gender-based violence, land mines, and a lack of access to shelter and food throughout the country. UNICEF has designated Libya a country of special concern, due to anecdotal evidence that children are being recruited and used in armed conflict, as well as concerns over the safety of children in government-run detention centres.
2.39 The dire security situation throughout the country has been particularly problematic for Libya’s minority groups. The absence of the rule of law, the presence of extremist movements such as ISIL, and the continued hostility of sections of Libyan society towards ethnic and religious minorities have led to sporadic incidents of violence and intimidation (see ‘Race/Nationality’).
…
5.10 DFAT is not aware of any effective mechanisms to investigate and punish abuses of authority, abuses of human rights, and corruption by post-Gaddafi police and security forces. In a security environment dominated by militias, a blurred chain of command has led to confusion about responsibility for the actions of armed groups, including those nominally under government control. In these circumstances, police and other security forces have usually been ineffective in preventing or responding to violence frequently incited by militias. Amid the confusion over chain of command and absent effective legal institutions, a culture of impunity has prevailed.
…
5.11 Security-related police work has largely fallen to self-constituted, disparate militias exercising police power without training or supervision, and with varying degrees of accountability. A number of armed groups emerged in the aftermath of the 2011 conflict. While many groups have melted away as their members re-entered civilian life, some still survive in the form of official and non-official military units. Some of these units are loosely affiliated with either of the two administrations, while others operate independently. …. the huge amounts of money involved in Libya’s black economy have led to a number of anti-Gaddafi rebel groups becoming criminals to earn money.
The most recent UNHCR Position on Returns to Libya, issued 12 November 2014[8], states:
11. 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 of persons having been directly affected by recent developments may need to be given particular attention, including, for example, political activists, human rights activists, judges, women engaged in the public sphere, NGO workers, media professionals, ethnic and religious minorities, and members of tribes or individuals perceived to be in support of 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. …
[8] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Libya, 12 November 2014, available at:
UNHCR concludes:
12. As the situation in Libya remains fluid and uncertain, UNHCR calls on all countries to allow civilians fleeing Libya access to their territories. UNHCR furthermore 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 until the security and human rights situation has improved considerably. Any proposed returns in the context of the application of an internal flight or relocation alternative would need to be assessed carefully, taking into account the individual circumstances of the case; UNHCR considers that, in the current circumstances, in most cases the relevance and reasonableness criteria are unlikely to be met…
Does the applicant have a well-founded fear of persecution?
The Tribunal has had regard to DFAT’s report regarding the treatment of ordinary recipients of the Study Abroad Scholarship returning to Libya. The Tribunal has also had regard to the applicant’s profile and finds that he is not an ordinary recipient of a Study Abroad Scholarship. The Tribunal finds that the applicant is a senior academic who was also a member of the RC working in Libya under the Gaddafi regime. The Tribunal finds that the applicant’s academic, employment and travel history shows that he was a trusted and privileged member of the RC who was promoted under the Gaddafi regime.
The Tribunal finds that it is reasonable to expect that if the applicant were to return to Libya he would re-engage in academic life and seek to find employment as [an academic]. In the circumstances the Tribunal finds that there is a real chance the applicant would come to the attention of the Libyan authorities and questions would be asked about his past employment and studies abroad. It would become apparent to the authorities that he held a senior position at the university and was member of the RC under the Gaddafi regime. In the circumstances, the Tribunal finds that there is a real chance that the applicant would be perceived be a person who was affiliated with and favoured by the former regime and he caught by the Political Isolation Laws.
As discussed above, the Human Rights Watch report also suggests 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 tendency by the authorities to look with some suspicion on returning scholarship-holders from overseas. The Tribunal finds that anti-Gaddafi militias might in turn entertain stronger suspicions, particularly if exacerbated by the applicant’s pro-Gaddafi tribal affiliations.
Having considered the applicant’s cumulative profile the Tribunal is satisfied that looking into the reasonable foreseeable future there is a real chance that the applicant will face serious harm at the hands of rebel militias who are affiliated with the current authorities if he returns to Libya.
In conclusion the Tribunal is satisfied that there is a real chance the applicant will face significant harm from rebel militia because of his Mashashiya ethnicity (race), imputed political opinion as a senior academic and RC member who was a supporter of the Gaddafi regime. The Tribunal is satisfied the persecution is systematic and discriminatory and amounts to serious harm as it includes threat to life or liberty, significant physical harassment or ill-treatment.
The Tribunal further finds that the state is not only unable to provide adequate protection against the feared harm but is also motivated to withhold such protection for a Convention reason, that is, the applicant’s imputed political opinion.
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 applicant would be unable to avail himself of any state protection throughout Libya.[9]
[9] MIMA v Respondents S152/2003 (2004) 222 CLR 1
In view of the applicant’s personal profile and the evidence outlined in the country information cited above the Tribunal finds that the threat to the applicant is not localised and a real chance of persecution applies to all areas of Libya. The Tribunal finds that relocation is not an option available to the applicant to avoid the risk of persecution.
Third country protection
Having found the applicant meets the criteria set out in s.36(2)(a) of the Act, the Tribunal has next considered whether the applicant has not taken all possible steps to avail himself of a right to enter and reside in any country apart from Australia: s.36(3).
Subsection 36(3) of the Act provides that Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
The right to which s.36(3) refers is not merely a right to enter, but must consist of a right both to enter and reside.[10] The Federal Court has held that a 'right to enter and reside' as envisaged in subsection 36(3) must be a 'legally enforceable right.'[11] The Australian courts have held that the right referred to in s.36(3) must be an existing right and not a past or lapsed right, or a potential right or an expectancy[12].
[10] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [64].
[11] Applicant C v MIMA [2001] FCA 229 (Carr J, 12 March 2001), Kola v MIMA [2001] FCA 630 (Mansfield J, 30 May 2001) at [36], upheld by the Full Federal Court in MIMA v Applicant C (2001) 116 FCR 154 and Kola v MIMA (2002) 120 FCR 170 at [63] respectively.
[12] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001).
As stated above, the Tribunal must consider if the applicant has a right to reside in another country within the UMA. The UMA is a trade agreement aiming for economic and future political unity among Arab countries of the Maghreb in North Africa. Its members are the nations of Algeria, Libya, Mauritania, Morocco and Tunisia. It has been reported that the UMA has been marred by differences between member states and has faced numerous challenges and has failed to move beyond conceptualisations.[13] The Tribunal has had regard to country information referred to in the delegate’s decision which confirms that no information was located confirming the freedom of movement of citizens of UMA countries. Country information cited by the delegate also refers to border tension between Libya and Tunisia. The delegate also noted that Morocco does not have refugee legislation, or established asylum procedures, meeting international standards and that Mauritania was reported to have deported a Libyan human rights activist.
[13] The Arab Meghreb Union, Aljazeera, 8 May 2005 >
The Tribunal has considered the evidence is satisfied that the applicant does not have a right to temporarily or permanently enter and reside in any country, other than Libya and that s.36(3) does not apply in the applicants’ case.
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 satisfied that the second named applicant is a spouse of the applicant and the third, fourth and fifth applicants are dependent children of the applicant for the purposes of s.36(2)(b)(i). As the applicant satisfies the criterion set out in s.36(2)(a), it follows that the other applicants will be entitled to a protection visa provided they meet the remaining criteria for the visa.
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.
Christopher Smolicz
Member

[2017] AATA 2840

13 November 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Standing