1512277 (Refugee)

[2018] AATA 4015

1512277 (Refugee) [2018] AATA 4015 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512277

COUNTRY OF REFERENCE:                  Libya

MEMBER:Jane Marquard

DATE:13 August 2018

PLACE OF DECISION:  Sydney

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

(i)that the first and second named applicants satisfy 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 and second named applicants.

Statement made on 13 August 2018 at 10:45am

CATCHWORDS
REFUGEE – Libya – social group – political opinion – member of pro-Gaddafi loyalist groups – second named applicant’s brother’s involvement in pro-Gaddafi demonstrations – brother appeared in YouTube videos of Gaddafi supports – anti-militia groups – lack of women’s rights – first named applicant – Abu Seif tribe member – Tribal conflict – fears being harmed or killed by the Libyan government – western educated – receipt of Gaddafi government scholarship – well-founded fear of persecution – children are members of the same family unit – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), r 1.2 Schedule 2

CASES
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
Sivalingam v MIMA (unreported, 17 September 1998)
Sundararaj v MIMA [1999] FCA 76

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

OVERVIEW

1. The applicants are a husband, wife and their three children. The first, second, third and fourth named applicants first arrived from Libya in Australia on [date] May 2011. The first named applicant (the husband applicant) was the holder of a [Student] Visa, with his family as dependents. The fifth named applicant was born in Australia in 2012.

2. On 26 August 2013 the applicants departed Australia and returned to Libya.

3. The family returned to Australia on 14 August 2014 as dependents on the husband applicant’s [second student] Visa.

4. They applied for protection visas pursuant to s.65 of the Migration Act1958 (the Act) on 11 December 2014. 

5. The applications were refused by the delegate of the Department of Immigration and Border Protection (the Department) on 27 August 2015.

6. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal).

7. The husband and wife applicants claim, in summary, that they fear violence and ill treatment from militia because they will be identified as having pro-Gaddafi political opinions, because they are from the Abu Seif tribe in the south and because of associations with the wife applicant’s brother, who is a Gaddafi loyalist, and other family members, and because they have spoken out in support of Gaddafi.

8. In order to be granted protection visas, the applicants must meet the refugee or complementary protection criteria. A summary of the relevant law is set out in Attachment A. The key issue for consideration in this review is whether there would be a real chance of serious harm from militia because of the applicants’ associations with the Gaddafi regime.

9. By way of background, the security situation in Libya has been described as ‘dire’ by the Australian Department of Foreign Affairs and Trade (DFAT).[1] The Gaddafi regime was overthrown in 2012 after 42 years of rule. Elections held in 2012 resulted in a political deadlock between two rival blocks, loosely termed the ‘nationalists’ and ‘Islamists’, but who are in reality a mix of regional, tribal and familial factions. Later elections, in 2014, were won by the nationalists, but not recognised by the Islamists, who took over Tripoli, calling themselves the General National Congress. The nationalists left Tripoli and based themselves in Tobruk, calling themselves the House of Representatives and gaining international support. They are backed by Field Marshal Khalifa Haftar’s eastern Libya-based Libyan National Army (LNA) movement. Both sides have declared themselves to be the official government, and there has been extensive fighting between associated militia. Other extremist groups, particularly Islamic State in Iraq and Levant (ISIL, aka Daesh), have used this conflict to consolidate their presence in Libya. In December 2015 a third governing entity, the Government of National Accord (GNA), with UN support, arrived in Tripoli to end the conflict. However neither the House of Representatives nor the General National Congress has fully co-operated with the GNA, and there has been political instability as well as violent civil conflict since then.[2]

   [1] DFAT, DFAT Country Information Report: Libya, 4 April 2016

   [2] DFAT, DFAT Country Information Report: Libya, 4 April 2016

10. Sebha (also called Sabha), the husband applicant’s home region, is 660 kilometres south of Tripoli. Gaddafi went to school in the region. According to news articles, the Tebu and Tuareg live side by side in the southern districts of the city. The north is dominated by Libya’s Arab Awlad Suleiman tribe, aligned with the country’s Islamist government in Tripoli. Conflict has taken place between all groups and there is no official government authority.[3] The region has been described as one of the most conflict-ridden in the country, with tribal and ethnic rivalries. Since 2011, in the absence of a central government capable of imposing its authority, there have been regular outbreaks of fighting between the powerful Awlad Suleiman and the Qaddadfa, the tribe of former dictator Muammar Gaddafi; between Awlad Suleiman and Tebus; and between Tebus and Tuaregs.[4]

    [3] Paton, C, IB Times, Libya: Inside Sabha the heart of Libya’s smuggling and human trafficking network, 31 July 2015, Cousins, M, The Arab Weekly, Chaos in Southern Libya could spin out of control, 27 May 2018, >

    After considering all the evidence set out below, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the first named and second named applicants satisfy s.36(2)(a) of the Act and the other applicants are members of the same family unit as the first named and second named applicants. Evidence, findings and reasons are set out below.

    CLAIMS AND EVIDENCE

11. The husband applicant provided evidence to the Department in his application forms, supporting documents and at an interview. He also provided written submissions to the Tribunal and appeared before the Tribunal at a hearing on 18 April 2018. A summary of the evidence is as follows:

    ·     He was born in [year] in the southern region of Sebha, and grew up there with his parents and [siblings]. Sebha is the largest city and capital of the south. He lived there until 2009.

    ·     His mother was a housewife and his father was in the army during the Gaddafi era. His father retired in 2000 and is now [age] years old. He was an officer in the military but the applicant does not know exactly what his role was.

    ·     He had [several] brothers, but one passed away. He has had no contact with his brothers since 2014 and does not know where they are. He does not speak on the telephone to his family. The south of Libya does not have proper communications or electricity and there is fighting between the tribes. He is concerned about this and it has caused him stress, psychological problems and skin issues. For security reasons people prefer not to answer telephone calls, and when they see a strange number they are afraid. The militias are monitoring telephone calls. His parents do not have access to email facilities. Even his colleagues at work are out of contact.

    ·     When he left Libya in 2014, his brothers were living in the suburbs of Sebha. There were troubles between the tribes and he has not seen them since. His brothers did not have definite jobs. They reached high school and left. He is the only one who went on to tertiary study.

    ·     He is from the Abu Seif tribe and is a Sunni. There are a few regions in Sebha, all controlled by different tribes. When he was growing up and as at 2010 and 2011 Abu Seif was one of the bigger tribes in his region, and there were Arab tribes as well. The balance changed later. After Gaddafi was removed, tribes with African origin increased in power and had weapons. All the way to the border of Niger the Tebu and Tuareg now control large regions. There were two civil wars between the tribes, in 2012 and 2014. From 2014 Abu Seif dissipated such that there are only individuals living there, but the tribe is not strong anymore. Abu Seif had some relationships with the other tribes but they were deceived by them. Warlords benefit from selling weapons and have associations with government authorities. The tribe has no power anymore and does not associate with militias.

    ·     It is well-established that members of the Abu Seif tribe were supporters of former Libyan leader, Muammar Gaddafi. A majority of male members of Abu Seif fought with the Gaddafi regime during the uprising against it in 2011. The whole of the south was ‘with Gaddafi’, and fought with him until the last minute. For this reason, southerners are regarded as traitors. Abu Seif members were known to be well-educated and also known for their opposition to Italian colonisation in the early twentieth century. Gaddafi was known for celebrating the lives of Abu Seif members who participated in significant historical battles in Libyan history.

    ·     The husband applicant finished secondary school in [year] and then studied for a [Diploma] at [Education Institution 1] until [year]. He worked as a teacher at [Education Institution 1] from [year] until [year] and also at Libya’s government-owned [company] from 2000 to 2004. He went to [Country 1] on a scholarship from October 2009 to June 2010. He did not like the standard of education so returned and applied to come to Australia. After that he prepared for his trip to Australia in 2011, and worked [in] his home business. He did not do military service because he was exempt on the basis that he did a job for the government for one year without salary, working at the university. One of his brothers served his full stint in the army and the others served for only six months. From 2007 until 2011 he travelled [overseas], for treatment for his wife’s [medical condition].

    ·     While living in Libya he was not politically active or vocal about supporting Gaddafi but he supported him ‘in his heart’.

    ·     He first applied for a government scholarship in 1999 not knowing that he would end up in Australia. He was approved in 2009 from an organisation run by the son of Gaddafi. He said now people in Libya cannot disclose that they were granted a Gaddafi scholarship as it can create suspicion. The criteria for grant of the scholarships were age, subject choice and recommendation from an appropriate official. A friend of his had a good relationship with the organisation run by Gaddafi’s son, and recommended him. In September 2010 he was awarded the scholarship [to] study in Australia.

    ·     During the period of Gaddafi’s uprising, he stayed at home in fear of being asked to fight. After the uprising, there was no government control. The uprising started in February 2011 and he left in May, going by road as the airports were closed. They travelled via [Country 2]. At the time members of his community and family fought for Gaddafi. This included uncles, relatives and friends. In 2012 his uncle was arrested by the Tebu, and was released after paying a ransom. Asked about his feelings at the time in regard to the Gaddafi uprising, he said that as an academic person he did not want to carry a gun and join the war. However he supported Gaddafi although he did not do so by taking up arms.  

    ·     The applicants first arrived from Libya in Australia on 8 May 2011. The husband applicant studied English and has also completed a [degree] and is preparing for [further studies]. The fifth named applicant was born in Australia in [year].

    ·     The applicants did not apply for protection in 2013 while the husband applicant was studying, as the husband applicant wanted to return to Libya as a proud Libyan, and hoped the situation there would improve. On television he saw that there was reconciliation between national leaders. On [date] August 2013, upon the completion of the husband applicant’s studies, the applicants departed Australia and returned to Libya. The applicants had read media reports and heard that the previous regime had been removed, and that it was a safe, democratic country and so they returned. He resumed his employment as a teacher with [Education Institution 1] until February 2014. His plans were to return and live and work there, but he was shocked when he returned. After a few months the situation deteriorated. They were unable to leave the house after dusk due to a risk of being abducted or harmed by militia. There were shootings on the street. Asked if he had any concerns of repercussions on him from militia, given that he came from a pro-Gaddafi area, he said that he did not know the situation would be as it was. He thought Libya looked ‘like heaven’ and at the time there was a government and the militias were not that powerful. He had seen in the media that the French president had visited. However, the western leaders did not have a plan to replace the government properly.

    ·     The whole of the southern part of Libya was supportive of Gaddafi and there have been ongoing fights between the Arabic tribes and African tribes. However if he goes to the coast they will look at him differently as a supporter of Gaddafi. From 2014 to now, the south is divided between the weaker supporter groups of Gaddafi and the other militia. There are two governments, one in Benghazi led by Haftar and one in Tripoli and both are anti-Gaddafi. Now the south is controlled by militias supported by two governments. Various pro and anti-Gaddafi tribes control Sebha and subject the population to politically motivated reprisal.

    ·     His daughter was enrolled in a local school in Sebha. One day a rocket-propelled grenade was fired at the school and all the teachers fled, abandoning the children and did not advise the parents. On another day a girl threw a rock at his daughter and he was not told. He later found out that the school’s management were anti-Gaddafi.

    ·     In February 2014 the family temporarily relocated to Tripoli because of inter-militia fighting. His home was damaged and many of his tribe members killed. In Tripoli they were subject to racial discrimination because of their tribal affiliations and they remained in their residence.

    ·     In April 2014 he was awarded a scholarship [to] study for [further studies] in Australia. He had applied in Australia for an extension of the scholarship to be approved by a sector of the education department. He did not need fresh approval. He had to go to Libya and then it was processed. He was asked if the award of the scholarship indicates that there was no concern among government sectors about his pro-Gaddafi affiliations. This was after the Libyan government had in 2012 passed a law which resulted in Libyan diplomatic missions overseas being required to report the names of students who had engaged in pro-Gaddafi activities and the Libyan government began scrutinising students returning from overseas study. He said that his scholarship extension was not dealt with on the basis of him being pro or against Gaddafi, it was just paperwork which was a continuance of his earlier scholarships, and it was the militias who were causing hostility towards pro-Gaddafi people. The executive officer of the Libyan Embassy in Canberra had little to do with the central Libyan government and could get a letter approving extension because he was in Australia. The applicant said that he submitted his application in 2013 before leaving Australia and received the approval by email.

    ·     In May 2014 the family lodged offshore applications for [another student] Visa which they were granted in July 2014. On 5 August 2014 they crossed the land border into [Country 2] as the airport in Libya was controlled by militia groups. The family returned to Australia on [date] August 2014 and applied for protection visas on 11 December 2014. 

    ·     He fears being killed or otherwise harmed by the Libyan government, armed militia groups, jihadist groups or rival tribe members on the basis of his membership of the Abu Seif tribe, his identity as a person from Sebha, his actual and imputed political opinion and his Western education. Hundreds of Abu Seif tribal members and other residents of Sebha have been killed, detained or remain missing. He was asked why he fears being killed or otherwise harmed by the Libyan ‘government’. He said that people think when you enter the airport you will see an official but in fact the officials are militia. If you want to travel by road, you may be arrested or kidnapped. He said that government was the wrong word to use, but what he means is that the militia and government are one. If he is caught by the militias he may be harmed or tortured, or imprisoned and killed. There are no courts or trials or accountability. He and his family have been displaced due to threats and violence perpetrated against them by rivalling tribes and anti-Gaddafi groups. Fighting between the Abu Seif tribe and Tubu tribe continues to threaten his family’s safety. As a result of this tribal conflict his family home has incurred significant damage and his maternal uncle and two paternal uncles were killed. His maternal uncle was killed during an armed carjacking by members of the Tubu [tribe]. This resulted in a meeting between tribal leaders from Abu Seif, Awlad Sulemein and the Tubu, resulting in an armed conflict which lasted a few days. During this conflict his paternal uncle was abducted from a military base by the Tubu and his uncle’s brother [a named person] was taken prisoner by the Tubu while participating in the fighting. [His uncle’s brother] and his uncle were released as part of a prisoner swap and payment of ransoms.

    ·     The husband applicant is concerned about being imputed with political opinion which is pro-Gaddafi and anti-militia because of his brother-in-law’s activities. His brother-in-law is [pro-Gaddafi] and has attended meetings and rallies with people of the same view. Their objective is to return the Gaddafi regime to power. His brother-in-law [participated] in a pro-Gaddafi rally in 2015 in [Sebha]. The rally was organised in response to [a political incident]. A YouTube video was provided to show the Tribunal the brother-in-law’s involvement. [Details deleted]. He said that his brother-in-law is now in hiding. He was surprised to know about the way his brother-in-law spoke openly as it places others at risk as well. Asked where he got the video, he said he got it off YouTube and sent it to his solicitor. He checks Facebook on pages for Sabha, and Arabic news. He just recognised his brother-in-law. They have not spoken to him since they left Libya as his wife’s mother passed away some time ago. He provided an identity card to show that the brother-in-law is the person shown on the video. He would be identified as a relative of his brother-in-law, as in Libya it is ‘like a small village’. People look at you and know who you are and what tribe you are from because of the social networks, which are very strong. Accents also help differentiate them. Different tribes have different appearances. People from his region look different to Tripolians because of their skin colour.

    ·     His wife has [several siblings]. Asked if there had been any repercussions because of her brother’s appearance in the video, he said that on the news they saw that there were shots fired on his house and he escaped, but they have no further news. His wife’s brother-in-law, her sister’s husband, is pro-Gaddafi as well, and the militias have been searching for him for some time, but they do not know where he is. He is from Gaddafi’s tribe. There was a news article about that brother-in-law. His name is [name deleted]. In Libya the eldest son is given the grandfather’s name. He said that the article was in 2015 and he will try and find it.

    ·     If the applicant returned to Libya he could not express his political opinion although he would like to do so, as he would be harmed by militia groups. As an educated person, he does not accept being subject to Sharia law and does not accept religious intolerance. He does not support the militias or the jihadists who have overrun his country. He does not support the government as they cannot unite the country and disarm the militias. He fears being targeted because of his Western education. Militias such as ISIS are powerful. If a person is stopped at a checkpoint then these militias may accuse this person of being a non-believer if he or she has been educated in the west. Before he saw his brother-in-law’s video, he was careful as he was scared about talking about his views. Now he knows that it makes no difference as, if he returned, he would be in danger because of the association with his brother-in-law. He has now expressed his views openly to colleagues at university and to friends.

    ·     There is no part of Libya that is safe.

1. A summary of the evidence provided by the wife applicant in written submissions and at the Tribunal hearing is set out below:

   ·     She was born in Sebha, Libya and is [an occupation]. Her parents came from this region. Her mother was a housewife and her father was [an occupation], and then had his own trading business.

   ·     Her family have been strong supporters of Gaddafi, especially after the uprising. Gaddafi supporters supplied weapons to her family in order to protect Sebha. Her family helped provide security to Sebha until it fell. Her brother fought in Sebha along with her sister’s husband. Her other brother was not in the revolution but went around the city and provided [assistance]. Her brother believes that Gaddafi is the core of the nation. He [participated in] the pro-Gaddafi demonstrations in Sebha in 2015 and [performed a certain role]. Asked if there had been repercussions against her brothers since then, she said that in 2014 they became afraid as they would be known for what they had done, and their neighbours informed on them. One of her brothers, who had been involved with intelligence was arrested and tortured. He had health issues and the torturers thought he had died and left him. Her cousin was thrown in a ditch and they found him dead.

   ·     The wife applicant had a good relationship with her brother and people thought she was his wife. Her sister is in [Country 2] and she telephoned the wife applicant, and passed on news about her family. She has heard that currently her sister’s husband and her brother are the subject of an order that anyone who finds them can shoot them. Her sister told her that she is afraid that she might be killed. Her sister is in hiding and the husband does not leave the house. In regard to her other brothers and sisters she has had no news since 2014. She has not had recent contact with her family as they continue to relocate to elude the anti-Gaddafi militias. She does not know the current whereabouts of her brother as he remains in hiding after appearing in the clear video of Gaddafi supporters. She fears being targeted because of her family’s support of and advocacy for the Gaddafi regime. People know how close she was to her brother. The community knows her, and that she is his sister. He cannot protect her now like he did in the past. Her husband cannot protect her. She is also very afraid that because of her brother’s political activities, her children will be kidnapped, as is a tactic of the militias. She knows of a family with children who were kidnapped and killed.

   ·     Since lodgement of her application, there have been further developments. As a result of the religious and tribal chaos following the revolution, women have suffered at the hands of Islamic militias, human traffickers and tribal violence. Women media and human rights figures have been assassinated. The situation for women is deteriorating, as Islamic fundamentalists are forcing women to cover up and restricting their freedom of movement, freedom of employment and general social freedoms. Women fear venturing out in public without the company of a male for fear of being physically attacked or kidnapped. This has led women to fear working as it is not safe to travel to and from work. As [an occupation] she is targeted by militants who oppose women working.

   ·     While she has been in Australia, she has spoken out about her views on women’s rights and her views about Libya. She spoke to one woman in Australia who told her that she was the ‘dog of Gaddafi’. She does not hide her views. If she returned to Libya she would want to express her views and defend her country. She has concerns about the subjugation of women in Libya, for her daughters and herself. She wants them to be free as they have been in Australia.

   ·     The family has been waiting since 2015 for a decision on their protection visa applications. This has affected the family psychologically. She has health issues including depression and her husband has also had health issues, including a skin condition.

   Departmental decision

2. The Department in a decision dated 27 August 2015 did not accept that the applicants met the refugee or complementary protection criteria. The delegate of the Minister for Immigration was not satisfied there was a real chance of persecution for being a member of the Abu Seif tribe given that the first named applicant was not a prominent member and did not participate in political activities. The delegate found that there was a chance of generalised violence only. He was not satisfied that there was a real chance of persecution for reasons of being pro-Gaddafi on the basis of country sources, and the applicant did not identify as pro-Gaddafi, or expressly support Gaddafi, and his family had not been harmed.

   The third, fourth and fifth named applicants

3. The children of the first and second named applicants did not provide evidence at the Tribunal hearing and it was confirmed that they would rely on the evidence of the first and second named applicants as members of the same family unit.

   Independent country information

4. 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 findings and reasons.

   FINDINGS AND REASONS

5. The Tribunal must determine whether the applicants meet the refugee criteria, and if not whether they are 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 of the Act. Nor is the Tribunal required to accept uncritically any and all allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; 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 applicants provided copies of their Libyan passports. It was clear that they were familiar with the culture, history and geography of Libya and the Tribunal accepts on the evidence before it that they are citizens of Libya and that Libya is the receiving country for the purposes of the complementary protection provisions.

   Do the first and second named applicants have a well-founded fear of persecution for reasons of their imputed political opinion?

9. The key issue in this case is whether the first and second named applicants have a well-founded fear of persecution for reasons of imputed political opinion because of associations with the former Gaddafi regime and their own views and backgrounds.

10. When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, and afford the benefit of the doubt to asylum seekers who are generally credible, but unable to substantiate all of their claims. While the Tribunal is not required to accept uncritically any and all claims made by an applicant, nevertheless, as Burchett J counselled in Sundararaj v MIMA [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

11. Indeed, as the Full Court noted in Sivalingam v MIMA (unreported, 17 September 1998) ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia’.

12. The Tribunal is guided by these decisions, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, 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, as well as a lack of corroborative evidence. All this is taken into account in these findings. The Tribunal has utilised the published guidelines of the Administrative Appeals Tribunal in relation to credibility.[5]

    [5] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, >

    Taking these decisions and guidelines into account, the Tribunal is satisfied that there is a real chance of serious harm for reasons of political opinion if the applicants were to return to Sebha, for the reasons set out below.

13. Firstly, as submitted by the applicants, their home region, Sebha, in the south of Libya, has had deep-rooted connections with Gaddafi and his loyalists. In fact Gaddafi went to school there.[6] The area was a stronghold for Gaddafi, and many people from the area fought for Gaddafi until the very end. Numerous articles refer to Sebha as a Gaddafi bastion during the Gaddafi era, as well as to fears from Gaddafi supporters that there would be reprisals against them. For example an ABC News story commented on these issues when Sebha was overthrown:

    New Libyan regime forces have largely seized one of the last three main bastions of Moamar Gaddafi, a month after the strongman was toppled, officials said.

    Sabha, deep in the North African state’s Sahara desert, has been holding out along with Bani Walid and Gaddafi’s hometown Sirte since the fall of the capital Tripoli on August 23.

    A CNN correspondent says NTC fighters are occupying the centre of Sabha after taking the airport and a fort the day before.

    Sabha has a large population of sub-Saharan Africans, many of whom fear reprisals from the NTC because of a belief that many fought as Gaddafi mercenaries during the civil war.

    It occupies a strategic location as the last notable town in Libya before the country opens out into vast desert, which has been an escape route for some members of Gaddafi’s family.

    There were reports earlier that Gaddafi himself may be hiding in the town along with his most politically prominent son, Saif al-Islam, but NTC fighters in Sabha have reported no sign of them.[7]

    [6] Berenice Stories, Libyan Tribes, 24 March 2014, ABC News, Gaddafi bastion Sabha falls to interim forces, 21 September 2011, >

    An article in the Terrorist Monitor also refers to Sebha as a ‘last stronghold of Gaddafi loyalists’, as well as ongoing conflict between tribes loyal to Gaddafi and other militias:

    Since late December, the strategic oasis city of Sabha has been the scene of deadly clashes between the Tubu, a tribe of indigenous Black African nomads ranging through the eastern Sahara, and the Awlad Sulayman, a traditionally nomadic Arab tribe of the Fezzan (southwestern Libya). Sabha, a city of 210,000 people about 400 miles south of Tripoli, is the site of an important military base and airfield. It also serves as a commercial and transportation hub for the Fezzan. Many of the residents are economic migrants from Niger, Chad and the Sudan, while the Qaddadfa (the tribe of Mu’ammar Qaddafi) and the Awlad Sulayman are among the more prominent Arab tribes found in Sabha. One of the last strongholds of the Qaddafi loyalists, Sabha was taken by revolutionary militias in September 2011.[8]

    [8] Terrorist Monitor, Vol 2, 12, Tripoli Battles Shadowy Qaddafists While Tribal Rivals Fight Over Southern Libya, 23 January 2014

14. These sources illustrate that Sebha was one of the last strongholds of the Gaddafi loyalists, and that there are now a number of prominent anti-Gaddafi tribes fighting for control of the region. Sources also suggest that Libyan Prime Minister Ali Zeidan in 2014 called on the revolutionary militias to rally to the south to expel the Qaddafists and restore order in the south and other security “hotspots”.[9]

    [9] Terrorist Monitor, Vol 2, 12, Tripoli Battles Shadowy Qaddafists While Tribal Rivals Fight Over Southern Libya, 23 January 2014

15. Secondly, the applicants have family members who have been integrally involved with pro-Gaddafi loyalist groups. The Tribunal is satisfied on the evidence of the applicants that the second named applicant’s brother and her brother-in-law fought for Gaddafi forces and continued to support the Gaddafi militia after the overthrow of Gaddafi. The Tribunal is satisfied that weapons were supplied to Gaddafi forces through their home. The Tribunal is also satisfied that the first named applicant’s father was in the military during the Gaddafi era. The Tribunal is satisfied on these matters because the applicants presented their evidence in a straightforward and open manner, without obvious attempts at embellishment. For example they were open that they had not been actively involved in political activities themselves, although the first named applicant said he supported Gaddafi ‘in his heart’. He also spoke about trying to avoid getting involved in taking up arms, as he is an academic and because violence is against his values. Their evidence about these matters was also convincing in that clearly when they arrived in Australia it was their intention to return to Libya, and initially they did so, after the first named applicant’s undergraduate study. It appears that they genuinely wished to live there, calling themselves ‘proud’ Libyans, but were ‘shocked’ by the situation in their city when they returned. This does indicate that they have a genuine story about why they seek protection, as they initially had no intent to stay in Australia. Further country sources do indicate, in parallel with their claims about family members’ involvement in these groups, that there has been ongoing conflict between pro-Gaddafi tribes and militia in the region, including Abu Seif, who fought with Gaddafi, and the Tebu, who fought against him.[10]

    [10] The Guardian, Libyan Tribal Clashes Kill at least 147 people, 1 April 2012, >

    The Tribunal is also satisfied that the second named applicant’s brother [participated in] a rally held in Sabha in 2015 to protest against [a political incident]. The applicants have provided an identification card for the brother, as well as a YouTube video depicting a person that bears resemblance to the person on the card, although it is not easy to determine this definitively. [Details deleted].[11] The Tribunal is satisfied on their evidence that shots were fired at the second named applicant’s brother’s house and that he and her brother-in-law have been hiding from the militia for some time.

    [11] [Source deleted].

16. The Tribunal is satisfied that if the applicants returned to Sebha, they would be associated with these family members. The first named applicant has described the region as being in many ways a ‘small village’ where networking is important. The rally involving the second named applicant’s brother had significant media coverage such that his name would be well-known and it is likely that the applicants would be associated with him and his views, as well as with other family members, all of whom supported Gaddafi. The second named applicant has spoken about how close she was to this brother, so much so that she had been mistaken for his wife. According to reports, Sabha is highly divided and tribal, such that it is likely that people would identify a person’s tribe and background.  

17. Thirdly, the first named 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 groups. 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”.[12] A copy of Resolution 13/2014 was provided by the applicant to the Tribunal. It decreed that:

    scholarships are to cease for those students delegated to study abroad who have led or took part in activities against the 17 February Revolution … salaries and allowance of Libyan employees who are abroad have led or took part in activities against the 17 February Revolution are to be ceased and lists of their names are to be submitted to the relevant authorities.[13]

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

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

18. The Tribunal did question whether the applicant would be targeted as a former scholarship holder as his scholarship was renewed in late 2013, such that he was able to do further [study] in 2014 in Australia. This does appear to indicate that even after the overthrow of the regime the new government had no concerns about him as the scholarship was renewed. However the applicant has explained, and the Tribunal accepts, that the extension was arranged by the embassy in Canberra just prior to the time when Resolution 13/2014 was implemented, and that the embassy had no connections to the militia at the time and would have simply processed the application. The Resolution, which has been widely discussed in human rights reports, could well have led to his name being later provided to relevant authorities such that he will be noticeable if he is stopped at checkpoints or otherwise has to deal with militia in other capacities when he returns.

19. Fourthly, the applicants are educated professionals who have spoken up against the actions of the militia and in the second named applicant’s case, the treatment of women in Libya. Given their strong opinions, and the fact that they would be working with other academics and teachers, it is likely that they would speak out if they returned to Libya in opposition to Islamist militia. The applicants are opposed to Sharia law and religious intolerance and fundamentalism. The first named applicant has also expressed concern about the internationally backed government as it cannot unite the country and disarm the militias. He has expressed his views openly to colleagues at university and to friends in Australia. The Tribunal is satisfied that he has done so because of his own views and values, and not to bolster his refugee claim. He is an educated man who does have strong opinions about his country, and clearly, a love for his country. Similarly, the second named applicant has spoken out about her views on Libya and also the lack of freedom for women in Libya as increasingly fundamentalist groups become more powerful. A Human Rights Watch Report in 2016 on the town of Sirte in Libya found the self-proclaimed Islamic State was enforcing a severe interpretation of Sharia law on its inhabitants. Women were being forced to wear a black, unadorned abaya (robe) and niqqab, and there were other rules about dress. ISIS morality police were able to fine and flog women who breached these rules. Girls as young as 10 were forbidden to leave home without a male relative.[14] While this took place in Sirte, Sebha is a place of significant lawlessness[15] where it is possible such extremist attitudes will develop. In any event the Tribunal is satisfied that the expression of these views by the applicants will lead to them being imputed with an anti-militia political opinion. DFAT assessed, in 2016, 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. DFAT stated that 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.[16]

    [14] Human Rights Watch, ‘We feel we are cursed’: Life under ISIS in Sirte, Libya, 18 May 2016, Paton, C, IB Times, Libya: Inside Sabha the heart of Libya’s smuggling and human trafficking network, 31 July 2015, DFAT, DFAT Country Information Report: Libya, 4 April 2016

1. Fifthly, the security situation in the country generally, and the applicants’ region specifically, is very precarious such that there could be little notice taken of attacks on them or protection against arbitrary arrest or ill treatment. According to numerous reports, the security situation in Libya generally 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.[17]

   [17] UNHCR, UNHCR Position on Returns to Libya – Update 1, October 2015,

2. The Human Rights Watch report for 2017 has stated that political divisions and armed strife continue to plague Libya as two governments vied for control. According to the report, armed groups throughout the country, some of them affiliated with one of the two competing governments, executed people extrajudicially, attacked civilians, abducted people and made people disappear.[18] This security situation does mean that there is an absence of law and order generally which exacerbates the chance of harm which the applicants may suffer for reasons of their imputed political opinion. A US Congressional Research Service report in 2018 has stated that various international efforts to mediate among Libyans have struggled to gain traction. The report noted that the UN-recognised Government of National Accord had begun to administer some government agencies in western Libya, but did not consolidate control over government nationally. The leaders of the eastern Libyan based House of Representatives, elected in 2014, withheld endorsement of the GNA’s cabinet, with the backing of Field Marshal Khalifa Haftar’s Libyan National Army. Haftar and his allies defeated Islamist militias in Benghazi after a three-year battle and have gained control over key oil infrastructure sites.[19]

   [18] Human Rights Watch, World Report 2018: Libya: Events of 2017, January 2018, Blanchard, CM, Congressional Research Service, Libya: Transition and US Policy, 8 January 2018,

3. 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.[20]

   [20] DFAT, DFAT Country Information Report: Libya, 4 April 2016

4. It is widely reported that the General National Congress has succumbed by degrees into 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 …[21]

   [21] Abdallah, K, Al-Ahram Weekly, Tribes and abductions, 5 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. 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 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. 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.[22]

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

   The United States Passport and International Travel Libya Travel Warning, refers to the loss of government control over much of the country and the limited capacity of police and security services to act. It states that various militias have supplanted the police in maintaining internal security, and that militia members operate checkpoints within and between major cities.[23]

   [23] United States Department of State, Passports and International Travel, Libya Travel Warning, >

   An assessment of Libya’s near future from the International Crisis Group[24] 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.

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

5. Sabha itself is one of the most lawless cities in Libya. Recent articles refer to how Sabha has become the heart of the country’s smuggling and human trafficking network. According to one article, the authority of Libya’s two rival governments does not extend into the deeply tribal south. However because of the scale of the illicit network trading people, drugs, weapons and fuel, it encompasses all factions and groups. It refers to the Tebu and Tuareg living side by side in the southern districts, with the north being dominated by Libya’s Arab Awlad Suleiman tribe, aligned with the Tripoli government. All three groups have engaged in sporadic clashes for control of the smuggling routes.[25] An article in May 2018 discussed how an ‘armed group’ had taken control briefly of the airbase north of the city before the militia Operation Dignity had taken it back.[26]

   [25] Paton, C, IB Times, Libya: Inside Sabha the heart of Libya’s smuggling and human trafficking network, 31 July 2015, The Libya Observer, Armed Group attacks Tamanhint airbase, south Libya, and takes brief control, 31 May 2018, >

   Another article in 2016 referred to the intense tribal conflict between militia in the area:

   At least 16 people died and 50 were wounded in Libya in four days of clashes between rival factions in the southern city of Sabha, a health official said on Sunday.

   According to residents and local reports, the latest bout of violence erupted between two tribes after an incident in which a monkey that belonged to a shopkeeper from the Gaddadfa tribe attacked a group of schoolgirls who were passing by.

   The monkey pulled off one of the girls’ head scarf, leading men from the Awlad Suleiman tribe to retaliate by killing three people from the Gaddadfa tribe as well as the monkey, according to a resident who spoke to Reuters.

   In the Sabha region, a hub for migrant and arms smuggling in Libya’s often neglected south, militia abuses and the deterioration of living conditions have been especially acute.

   The Gaddadfa and the Awlad Suleiman represent the most powerful armed factions in the region.[27]

   [27] Reuters, Monkey Incident Sparks clashes in southern Libyan city of Sabha,16 dead, 21 November 2016, >

   An article in The Arab Weekly in May 2018 describes the Sabha region as one of the most conflict-ridden in Libya and attempts to explain the complicated tribal rivalry:

   Killings, kidnappings, robberies, attacks on public buildings and facilities, acute shortages of fuel, food and other necessities, remnants of the Islamic State lurking in the background, the smuggling of people, drugs and weapons — this and so much more has been the reality for southern Libyans since the 2011 revolution.

   Feeding the chaos have been Fezzan’s tribal and ethnic rivalries. Since 2011, in the absence of a central government capable of imposing its authority, there have been regular outbreaks of fighting between the powerful Awlad Suleiman tribe and the Qaddadfa, the tribe of former dictator Muammar Qaddafi; between Awlad Suleiman and Tebus; and between Tebus and Tuaregs.

   Since February, in Fezzan’s capital, Sabha, the main conflict has been between local Tebus and 6th Infantry Brigade, composed of members of Awlad Suleiman. It has wreaked havoc on the city. Dozens of civilians have been killed in the clashes. Among those killed were students at the university, which had to be closed. Homes have been shelled and the city’s iconic fort, which dominates the skyline and figures on the country’s 10-dinar banknote, has been badly damaged. The terminal at the airport, closed for more than three years because of clashes, is in ruin. The scale of the hostilities was highlighted in a report by the UN Support Mission in Libya that noted that nearly half of the 36 attacks on hospitals in the country in the past year were on Sabha Medical Centre. From February-May this year, it was shelled or hit by bullet fire 15 times. Complicating the chaos, the conflict between the Tebus and 6th Infantry Brigade has taken on a national dimension, becoming a proxy war between the Libyan National Army (LNA) of Field Marshal Khalifa Haftar and the Tripoli-based Presidency Council’s Government of National Accord (GNA) under Fayez al-Sarraj. The brigade had supported the GNA while the Tebus forces were nominally linked to the LNA. However, in February, eastern tribal elders, who were supposed to mediate a truce between the 6th and the Tebus, offered legitimacy to the former as an LNA unit. The LNA then provided it with weapons and ammunition that Tripoli had promised, along with funding, but never delivered. Matters came to a head in early May. The man appointed by Haftar as military governor of the south, Major-General Al-Mabrouk al-Ghazawi, arrived in Sabha and ordered a ceasefire between the warring parties. The Tebus, who were already drifting away from Haftar and the LNA, demanded to know whether the 6th was an official LNA unit. Ghazawi said it was. The response infuriated them. Their war, a member of their Sabha crisis committee declared, was no longer just with the 6th, it was with the LNA. The Tebus, well-armed and considered among the best fighting forces in the country, launched an immediate attack, driving the brigade from Sabha castle and its nearby headquarters. For the moment, they are the winners in Sabha and have moved to cement their position through alliances with local tribes and also to the Awlad Suleiman.[28]

   [28] Cousins, M, The Arab Weekly, Chaos in Southern Libya could spin out of control, 27 May 2018, >

   These reports indicate that there is a failure of law and order in Libya, and in Sebha specifically, and that militia operate with impunity across the country. This does mean that it is easier for militia to target individuals, and if the applicants or their children were to be targeted, they could not avail themselves of any of the organs of government, such as police, military or the judiciary.

6. Finally, there are difficulties getting into and moving around Libya safely, and this does mean that Libyans returning from overseas may be noticed and scrutinised by militia, and activities of their past and connections checked. Tripoli airport was seized by Islamist forces in 2014.[29] While the airport re-opened in July 2017, there are only limited flights. DFAT advice has indicated that Benghazi airport is slowly re-opening to commercial flights.[30] 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.[31] Sebha airport has been closed.[32] 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.[33] DFAT travel advice for June 2018 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.[34]

   [29] BBC World News, Libya crisis: Tensions rise as Tripoli airport seized, 24 August 2014,

   [30] DFAT, Travel Advice: Libya, 22 June 2018, BBC World News, Turkish Airlines stops Libya flights to Misrata, 6 January 2015,

   [32] Cousins, M, The Arab Weekly, Chaos in Southern Libya could spin out of control, 27 May 2018, Libya Prospect, Interesting chapter in the absurdity of the Libyan scene, 28 June 2016,

   [34] DFAT, Travel Advice: Libya, 22 June 2018,

7. When considering all these matters cumulatively the Tribunal is satisfied that the applicants will be imputed with a pro-Gaddafi and anti-militia opinion and that there is a real chance of serious harm for this reason. While much of the conflict within the country has become tribal, generalised and regional, the country sources do indicate that historically and recently those imputed with pro-Gaddafi and anti-militia opinions face a real chance of serious harm. Citizens who have had close associations with the former regime have been targeted for attacks by militia since the fall of the regime. According to DFAT, after the fall of the Gaddafi regime, the Ministry of Interior 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 that 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. There were no 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.[35]

   [35] DFAT, DFAT Country Information Report: Libya, 4 April 2016

8. DFAT reports that although Law 29 on Transitional Justice (2013) required authorities to charge or release all detainees affiliated with the previous regime by 2 March 2014, Amnesty International reported in 2014 that this deadline had not been fully met and thousands of detainees remained in detention centres across the country. Amnesty International also reported that Libyan courts had faced difficulties in processing cases of detainees due to public and militia pressure, with prosecutors, judges and lawyers defending perceived pro-Gaddafi loyalists facing intimidation, threats and violence. 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. DFAT has stated that reports have indicated that 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.[36]

   [36] DFAT, DFAT Country Information Report: Libya, 4 April 2016

1. In light of this information about treatment of loyalists of the regime, DFAT has assessed that those who were, or are perceived to have been, high-ranking officials in the Gaddafi regime 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. DFAT states that this may include being illegally detained, beaten or tortured; having death threats made against themselves or their families; or being killed. However, DFAT assessed that it was 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. This is because 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 assessed therefore that it was unlikely that a Libyan with a low-level association with the regime would face discrimination as a result of this association.[37]

   [37] DFAT, DFAT Country Information Report: Libya, 4 April 2016

2. Some 2017 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,[38] 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.[39]

   [38] Borger, J, The Guardian, After six years in jail, Gaddafi’s son Saif plots to return to Libya’s turbulent politics, 6 December 2017,

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

   An applicant’s fear of persecution 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 if they have genuine fear founded upon a ‘real chance’ of being persecuted for one of the reasons set out in the legislation.

3. 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.

4. 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.

5. In assessing whether the chance of harm is real as opposed to speculative or remote, the Tribunal has taken into account the comments in the DFAT report that not all pro-Gaddafi supporters are targeted, as well as progress in the form of the 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 for these applicants is substantial, even if it does not amount to a 50 per cent chance. While a majority of Libyan citizens supported the former regime and many worked within it, the applicants’ family members have been closely involved in the forces fighting against the militia and in a movement to reinstate a regime based on the Gaddafi era. These family members are being sought out by militia and one is a public figure.  The DFAT report states that militia have tortured and executed perceived Gaddafi loyalists, and that thousands of pro-Gaddafi supporters remain in prison. The Tribunal is satisfied that the applicants may be perceived as Abu Seif tribal members from Sebha having very close connections to the Gaddafi regime through the connections with their family members and because the first named applicant has returned from the west where he was on a Gaddafi scholarship. The Tribunal accepts that it is too early to draw conclusions on any progress in attitudes towards former Gaddafi loyalists. A recent United Nations Security Council report[40] 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. 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.[41] Taking into account all the factors, the applicants’ backgrounds, their family connections, the scholarship, their political views and the precarious security situation, including travel in their home region and Libya broadly, the Tribunal is satisfied that they face a real chance of serious harm were they to return to Libya in the reasonably foreseeable future. While much of Libya is subject to indiscriminate and generalised violence motivated by various factors, in the applicants’ case, the Tribunal is satisfied that the persecution would be inflicted for reasons of imputed political opinion, given their strong views and the fact that it is likely that they will express those views, their family connections, and the fact that they have travelled to Australia on a Gaddafi-sponsored scholarship.

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

   The Tribunal is not satisfied, given the country sources referred to above that the applicants could safely and reasonably relocate to another part of Libya.

6. The Tribunal is not satisfied that state protection is available to the applicants given the lawless state of the country at the present time.

7. The Tribunal is not satisfied on evidence before it that the applicants have a right to enter and reside in a safe third country. While there is a trade agreement which exists between Algeria, Libya, Mauritania, Morocco and Tunisia, it has been reported that in terms of freedom of movement between the countries the agreement has failed to move beyond conceptualisations. Sources suggest borders have tightened rather than opened up to movement between the nations.[42]

   [42] Al Jazeera, The Arab Maghreb Union, 9 May 2005, The Arab Weekly, Arab Maghreb Union: A big idea that has gone nowhere, 23 July 2017, >

   The Tribunal is satisfied therefore that the first named and second named applicants have a well-founded fear of persecution for reasons of imputed political opinion were they to return to Libya in the reasonably foreseeable future.

   Third, fourth and fifth named applicants – membership of the same family unit

8. The Tribunal is satisfied that the third, fourth and fifth named applicants are children of the other applicants and are therefore members of the same family as the first and second named applicant for the purposes of s.36(2)(b)(i) of the Act.

   CONCLUDING PARAGRAPHS

9. For the reasons given above the Tribunal is satisfied that the first and second named applicants are persons in respect of whom Australia has protection obligations and whom satisfy the criterion set out in s.36(2)(a) of the Act.

10. The Tribunal is not satisfied that the other applicants are people in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa) of the Act. However, the Tribunal is satisfied that the third, fourth and fifth named applicants are members of the same family unit as the first and second named applicants for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the applications of the first and second named applicants. 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

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

    (i)that the first and second named applicants satisfy 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 and second named applicants.

    Jane Marquard

    
    

    Member

    ATTACHMENT A

    RELEVANT LAW

12. 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

13. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

14. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

15. 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.

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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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

23. 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’).

24. ‘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.

25. 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

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

    Member of the same family unit

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