1601312 (Refugee)

[2018] AATA 2616

1601312 (Refugee) [2018] AATA 2616 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601312

COUNTRY OF REFERENCE:                  Libya

MEMBER:C. Packer

DATE:24 May 2018

PLACE OF DECISION:  Melbourne

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

(i)the first-named and second-named applicants satisfy s.36(2)(a) of the Migration Act; and

(ii)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 and second-named applicants.

Statement made on 24 May 2018 at 2:25pm

CATCHWORDS
Refugee – Protection visa – Libya – Imputed political opinion – Perceived association with the Gaddafi regime –Second named applicant’s scholarship sponsored by the regime – Trips to Libya to visit family – Adverse political situation – Militia forces control home area – High risk of violence – Returnee from a Western country – Well-founded fear of persecution – Decision under review remitted

LEGISLATION
Migration Act 1994 (Cth), ss 36, 65
Migration Regulations 1994(Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Libya applied for the visas on 8 August 2014.

3. The applicants did not attend the delegate’s interview scheduled for 14 December 2015.

4. On 20 January 2016 the delegate refused the application.

5. On 4 February 2016 the applicants applied for review of the delegate’s decision.

6. On 24 May 2018 the applicants attended a Tribunal hearing.

7. The issue in this case is whether the applicants meet the refugee criterion, and if not, whether the applicants are entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

8. The first-named and second-named applicants’ narrative is centred on their fear of being harmed by the militia forces controlling their home area and different parts of Libya. After considering his evidence and the material before the Tribunal, I accept there is a real chance they will be perceived to have been associated with the Gaddafi regime and so face persecution in Libya. I conclude that the matter should be remitted for reconsideration with the direction that the first-named and second-named applicants satisfy s.36(2)(a) and the other applicants satisfy s.36(2)(b)(i).

   CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

   Background

9. The protection visa application provided some basic background information, and the applicants supplemented this with further details at the hearing. In the written application, the first-named applicant stated that he was born and raised in [Town 1] in Libya. He had parents and [several siblings] in Libya. He stated his ethnic group is Libyan and he is a Muslim Sunni. He stated he had a tertiary qualification. He stated his wife was also born and raised in [Town 1] in Libya. She had parents and [siblings] in Libya. She had a tertiary qualification and had studied a [university degree] in Australia, and in Libya she had worked as [an occupation]. She came to Australia on a Student scholarship and he travelled as a student dependant, together with their [eldest children]. A third [child] was born in Australia.

10. In the review the applicants said an incompetent migration agent had prepared their application and explained how inaccurate information had been inserted in the application. They had not attended the delegate’s scheduled interview because the migration agent had not told them about it. The first-named applicant stated he in fact had parents, [brothers] and [sisters] all living in Zintan, a town of 50,000 people. The second-named applicant had parents, [brothers] and [sisters] all living in Zintan.

11. The applicants’ protection visa application showed two trips out of Australia: from 22 November 2011 to 8 February 2012; and from 27 November 2013 to 11 February 2014.

12. Country information[1] shows that Libya’s estimated population was 6.4 million. Libya’s population is heavily urbanised, with around 90% of Libyans residing in the four largest cities of Tripoli, Benghazi, Misrata and Bayda, although Benghazi has been largely destroyed in the civil war. Libya’s citizen population is almost exclusively Arab and Amazigh/Berber (97 per cent). Libya’s official language is Arabic, although Italian and English are widely spoken and understood in major cities and a number of Berber languages are also spoken. Islam is the official religion, and virtually all Libyans are Sunni Muslim.  Libya’s current political divisions correspond roughly to the former Ottoman boundaries.

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

13. The applicants claim to fear persecution in Libya from non-State agents. Their key claims as summarised are:

    ·They fear being accused of having been associated with the Gaddafi regime because of the regime’s past support of their Student sponsorship.

    ·They fear being harmed by the Jwala militia or the Atari militia that are in a contest for control of Zintan, and by militia forces controlling different parts of the country.

14. In submissions the applicants claim to have a well-founded fear of persecution in Libya arising from:

    ·Political opinion: They fear non-State actors will harm them because of their political opinion, actual or imputed, as having been associated with the Gaddafi regime.

    ·Political opinion: They fear non-State actors will harm them because of their imputed political opinion as being against either the Jwala militia or the Atari militia or other militias.

    Evidence

15. The evidence before the Tribunal includes the following material:

    ·the Protection visa application form lodged on 11 August 2014, which includes typed reasons for seeking protection in Australia

    ·passport pages and identity documents

    ·medical report from [a] Hospital dated 24 March 2013

    ·the Protection visa decision record (‘delegate’s decision’) dated 20 January 2016, which is the subject of this review

    ·the application for review, which has attached to it a copy of the delegate’s decision

    ·submissions and country information, and statement dated 21 November 2017

16. The applicants appeared before the Tribunal to give evidence and present arguments, on 24 May 2018. The hearing was conducted with the assistance of an accredited interpreter in the Arabic and English languages. The applicants stated they understood the interpreter, and during the hearing they did not tell me they had any difficulties with the interpretation. At the start of the hearing I asked whether they were well and able to talk about their story, and they stated they were. During the hearing they appeared to fully understand questions and gave coherent answers and explanations. I assess that they were competent to give evidence and had a full opportunity to put forward their story and arguments.

    Assessment of claims

17. The applicants claim to be nationals of Libya. I sighted copies of their Libyan passports. All the available evidence, including the applicants’ oral evidence and familiarity with Libya, supports their claim to be Libyan nationals. Libya is therefore the country of reference for the purpose of assessing the applicants’ protection claims, and the receiving country when assessing their claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicants’ evidence given at the hearing, I accept they have the identities claimed.

18. The applicants’ narrative is centred on their fear that non-State actors will harm them because of their imputed political opinion as having been associated with the Gaddafi regime. This is because the second-named applicant was supported for her Student sponsorship by the Gaddafi regime. As well, the applicants have been resident in a western country for a number of years, and may be perceived to be wealthy, and so will be targeted as returnees. Also, they explain that Zintan is currently controlled by two militias who remain in contest for control of the small town, and they fear that either of the militias will harm them because of their imputed political opinion as being against either the Jwala militia or the Atari militia.

19. When the first-named and second-named applicants and two children first left Libya for Australia in 2010, Gaddafi was still in control of the country but was about to be thrown out of power. Gaddafi was captured, beaten and assassinated by local fighters loyal to the opposing National Transitional Council (NTC) in October 2011, at the climax of a civil war that had begun on 17 February of that year, when the applicants were in Australia as students.[2] Gaddafi’s execution was followed by a brief period of civil interim rule. It is also widely reported that the NTC which evolved into the General National Congress notably succumbed by degrees in 2013 to 2014 to relative anarchy and inter-tribal conflict:

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

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

    However, the tribes are often as much a part of the problem as they have been a part of the solution, in view of the eruption of inter-tribal tensions and disputes in the post-revolutionary period …[3]

    [2] Al Jazeera, Libya two years on: Revolution and devolution, 17 February 2013, [ Al-Ahram Weekly, Tribes and abductions, 6 February 2014, [>

    The Tribunal had some concerns as to whether the applicants have a genuine fear of serious harm given that they returned to Libya on two occasions. They were away from Australia from 22 November 2011 to 8 February 2012; and again from 27 November 2013 to 11 February 2014. At the hearing the first-named applicant’s evidence was that when they returned in November 2011 to see their families, the post-war period was relatively peaceful. Government services had resumed and they were receiving scholarship funds. A brother injured by a land mine had been sent to [Country 1] and [Country 2] for medical treatment, and a brother shot in the leg while fighting for the rebels, had been sent to [Country 1] for medical treatment. He explained that when they returned to Libya in November 2013 to visit their families, the situation in Libya was very different. They discovered that the road trip to Zintan had become dangerous and they had been fearful of harm from militias. As well, kidnappings and violence between the tribes, particularly between the Misratah and Alzintan tribes had started. The family had flown from Tripoli on one of the last flights out of Libya. Then, major fighting started in 2014 and the situation in Libya had severely deteriorated since then.

20. Country information supports the first-named applicant’s evidence as it shows there was an interim period of civil rule. One source in November 2014 suggests that Libya saw “an explosion of civil society” after the overthrow of Gaddafi.[4] This may have provided a window of opportunity for people such as the applicants to return without repercussion in November 2011 and November 2013. As well, country information shows there had been a significant decline in security conditions after the applicants’ last visit when anti-Islamists led by fighters from Zintan had opposed the political Islamists from Misratah in a war that started in July 2014. The Washington Institute for Near East Policy report from November 2014 discusses the deteriorating conditions and mentions the applicants’ home town of Zintan:

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

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

    Libyans are increasingly identifying with town and tribe over a shared notion of Libyan citizenry. As a result, there will be no neat division of the country… Libya could be rendered “into small emirates of no value.” Libya’s patchwork alliances are facilitating the devolution of any notion of the central state. In the northwest, alliances are geographically noncontiguous: Zintan (pro-Dignity) is surrounded by the pro-Dawn Amazigh towns of Jadu, Kikla, to an extent Nalut, and Zuwarah further north; in between Tripoli and Zintan is Gharyan (pro-Dawn), with the pro-Dignity towns of Bani Walid to its east and Aziziya to its north. In the Gulf of Sirte, federalists (pro-Dignity) control key oil export terminals and some small towns, but are limited to the west and east by Ansar al-Sharia in Sirte and Ajdabiya, respectively. In the northeast, Operation Dignity forces led by Haftar are contesting Benghazi, and are in al-Marj, Bayda, and Tobruk, while various other extremist groups occupy Benghazi proper, Darnah, and the Green Mountain region. The south represents the only area where any one group can exert contiguous geographic control with a certain degree of success: the Tebu have strengthened their positions and control of the southern border from Kufra in the southeast to Murzuq in the southwest, while the Tuareg control the southwestern border region. Both groups are connected to fellow tribesmen across Libya’s borders. But the Tuareg are not always united, and ethnically and tribally mixed towns like Sebha [Sabha] and Ubari cannot be neatly divided, and will likely continue to see continued intercommunal bloodshed.[5]

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

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

    Notwithstanding that there would have been a significant risk for them to return to the country in November 2013 as people associated with the former regime were being targeted then, I am satisfied that they now have a genuine fear of serious harm should they return to Libya. Country information shows that there has been a long period of political, religious and generalised violence in Libya and that the situation of generalised violence continues. An assessment of Libya’s near future from the International Crisis Group[6] in February 2015 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.

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

21. The April 2016 DFAT report Libya states:

    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.

    2.34      The struggle for political ascendancy in Libya has included a number of battles for control over Libya’s vital oil and gas infrastructure, fought by a range of state and non-state actors. These have included a February 2015 terrorist attack at Mabruk oilfield, 170km south-east of Sirte, which killed nine and resulted in the kidnapping of three foreign oil workers; a March 2015 attack by ISIL-affiliated militants at Al Ghani oilfield, 600km south-east of Tripoli, which killed eight oil workers and resulted in the kidnapping of nine foreign nationals; and attacks in early January 2016 by ISIL-affiliated militants on the neighbouring oil ports of al-Sidra and Ras Lanuf which killed at least nine guards and injured at least 40 people, and resulted in five massive oil storage tanks being set ablaze.

    2.35      Terrorist attacks have occurred frequently across Libya. In January 2015, at least nine people (including five foreign nationals) were killed in a terrorist attack on the Corinthia Hotel in Tripoli, an international hotel frequently used by foreigners. Since November 2014, there have been a number of car bomb attacks in public areas in Tripoli, Tobruk and Benghazi, which have caused many casualties. On 7 January 2016, a truck bomb targeting a police training centre in the western city of Zliten killed at least 47 recruits and injured more than 100 people.

    2.36      The breakdown of security across Libya has involved a number of attacks against foreign interests, including several attacks against diplomatic premises. On 11 September 2012, Islamist militants attacked two US diplomatic compounds in Benghazi, killing the US Ambassador and three other Americans. In addition, between November 2014 and April 2015 there were separate attacks in Tripoli against the Embassies of Egypt and the United Arab Emirates (both 13 November 2014), Algeria (17 January 2015), Sudan (3 February 2015), Morocco (13 April 2015), and Spain (20 April 2015). As a result of this instability, the majority of diplomatic missions, international agencies and NGOs have relocated their offices to Tunis. This relocation has made it harder for agencies to conduct humanitarian operations, and to gain accurate information on the humanitarian and security situation within the country. As of September 2015, only nine international NGOs retained an operational presence in Tripoli, Benghazi, Misrata and Sabha, with international staff conducting visits from outside the country.

    2.37      Humanitarian access to areas in need has varied considerably across provinces. Areas under ISIL control have not been accessible. As of September 2015, ISIL controlled a 200km stretch of coastline around the city of Sirte, and also had a presence in the cities of Derna and Benghazi and near the Egyptian border. Armed conflict and violence have posed access challenges elsewhere, particularly in the east and south, including Benghazi, Al Kufrah, Sabha, Awbari and Ghat. Logistical access to remote areas of the south has been difficult.

    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.

1. The UK Home Office Country Policy and Information Note Libya: Security and humanitarian situation January 2018, states:

   3.1.1     In general the humanitarian conditions are not at such a level as to make return a breach of Article 15(a) and (b) of the Qualification Directive / Articles 2 and 3 of the ECHR but may do so in relation to some persons, particularly vulnerable people, e.g. displaced, female-headed households, children, persons with disabilities and the chronically ill.

   3.1.2     Caselaw has found that the level of indiscriminate violence has reached such a high level that there are substantial grounds for believing that a returning civilian would, solely because of their presence in Libya, face a real risk of being subject to a threat to their life or person.

   3.1.3     Therefore, a person will qualify for humanitarian protection on the basis of the general security situation if they do not qualify for a grant of asylum or a grant of humanitarian protection on the basis of a particular risk to them and are not excluded from a grant of protection.

   3.1.4     Internal relocation is not a reasonable option.

2. The Australian government’s official travel advice[7] concerning Libya currently is “Do not travel to Libya due to the ongoing fighting and deteriorating security situation throughout the country.”

   [7] [>

   In light of the foregoing country information I find that in Libya the applicants face a high risk of violence due to their perceived association with the Gaddafi regime, and their lack of support for militias that control Zintan and other parts of Libya. I find the harm they face is serious harm as the DFAT report Libya shows: the overall security situation in Libya is dire; the UNHCR reports there have been many instances of rape, gender-based violence, land mines, and a lack of access to shelter and food throughout the country; and UNICEF has designated Libya a country of special concern due to concerns over the safety of children. I find this would involve serious harm to the applicants and systematic and discriminatory conduct and would amount to persecution. And I find there is a real chance they will face such serious harm in Libya based upon DFAT’s assessment of the dire overall security situation throughout Libya, and the Australian government’s official travel advice about the deteriorating security situation throughout the country, and in light of the UK government’s advice that the generalised violence is so high that “a returning civilian would, solely because of their presence in Libya, face a real risk of being subject to a threat to their life or person”.

3. I am also satisfied the well-founded harm the applicants fear is because of their imputed political opinion as being associated with the Gaddafi regime, and/or their imputed political opinion as being against local militias. I find that the reason of their political opinion (actual or imputed) would be the essential and significant reason for the persecution. I find that in light of the fore-mentioned country information adequate state protection will not be available to the applicants, and that it would not be safe or reasonable for the applicants to relocate to a different part of the country as travel itself is dangerous and the danger from militias exists across the country. In sum, I find that in Libya there is a real chance they will suffer serious harm amounting to persecution for reason of their political opinion (actual or imputed), now and in the reasonably foreseeable future. 

   Conclusion

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

5. The Tribunal is satisfied that the first-named and second-named applicants’ children are members of the same family unit as the first-named and second-named applicants for the purposes of s.36(2)(b)(i). 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

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

   (i)the first-named and second-named applicants satisfy s.36(2)(a) of the Migration Act; and

   (ii)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 and second-named applicants.

C. Packer
Member