1609593 (Refugee)

1609593 (Refugee) [2019] AATA 5711 (15 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609593
COUNTRY OF REFERENCE:                   Libya
MEMBER:Rodger Shanahan
DATE:15 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 15 May 2019 at 9:59am

CATCHWORDS
REFUGEE – protection visa – Libya – religion – Sunni Muslim – imputed political opinion – Ghaddafi supporter – recipient of government scholarship – political opinion – anti-militia activist – Misrata militia groups – protest and social media activity – credibility concerns – voluntarily returned to country – limited nature of social media activity – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Libya, applied for the visa on 12 November 2015.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application December 2012
The applicant applied for protection on 24 December 2012, this was refused on 7 August 2013 and affirmed by the RRT [in] April 2014. He claimed protection based on his religion and actual and implied political beliefs. He is a committed Sunni Mulsim, arrived in Australia [in] August 2010 on a student visa on a Libyan government scholarship. Since the fall of Gaddhafi Libya is in an anarchic state. He briefly visited his family in December 2011 but he maintained a low profile because of the feeling against pro-Gaddhafists.
He now fears returning because he may be imputed with being a Ghaddafi supporter because he accepted a government scholarship even though he was a staunch opponent of it. he vehemently opposes the state of disorder and militia rule, which will automatically bring him to the attention of the militia leaders who tolerate no dissenting voices.
His city of Misrata continues to harass former Ghaddafi supporters. Violent retributions are being carried out against former supporters or perceived supporters of the regime. They are driven out of town, their property destroyed and they are subject to execution. Rival militias vie for power and people are kidnapped based on their tribal identity or any discontent against militias.
If he returned to Libya he would be caught up in the power struggle, and he could not relocate. The central government has limited control and the vacuum is filled by militias. He would have to completely desist from expressing his political views and moderate religious views. The militias are trying to instill shari’ah. He would have to modify his views if he returned. It would be impossible for him to refrain from condemning the current leaders if he were to return, and he would be brought to the attention of the militias.
Protection Visa Application November 2015
The applicant travelled to Libya in June 2015 and returned to Australia [in] August 2015. He again applied for protection on 12 November 2015 and this was refused by the delegate on 8 June 2016. The applicant claimed that conditions in Libya changed rapidly after the fall of Gadhaffi and conflict broke out. His family and friends urged him not to return to Libya. This was why he had lodged another protection visa. He was quite sure that Australia and western states are wholly responsible for toppling the Ghaddafi regime and they should therefore protection to the applicants just as they did to Chinese after Tianmen Square.
After his protection visa was rejected he decided to head to Libya – he planned to disappear temporarily away out of sight. He flew in from [Country 1 in] June 2015 but his presence in Misrata was soon discovered, and his family house was attacked by a group calling itself the Eissa Regiment. He couldn’t be differentiated from his brothers so they blindfolded them all and were taken to [Prison 1].
They all faced severe forms of torture including severe beating. He was accused of opposing the regime and communicating with groups loyal to the military rule in Cyrenaica. He was identified after two hours and then charged him with atheism, infidelity and plotting He was blindfolded and interrogated by several groups, and asked him to sign a confession and say who he had been dealing with.
He was kept for 15 days suffering persecution, intimidation and starvation. They then agreed to let him free on bail that his father posted. He was released with a smashed body and two broken ribs and he stayed in the family farm away from Misrata to avoid being arrested. Some relatives got him a seat on a plane that left [in] August 2015.
His house had again been raided two weeks prior to his submitting the protection visa application, and his [brothers] were arrested in order to force the applicant to surrender himself, not knowing that he had already left. There was no information at the airports that could track the fact he had left.
He remains terrified about the fate of his brothers, and the group that attacked him are allied with al-Qa’ida. The rejection of his previous application forced him to return and expose him to arrest and torture.
Statement 12 February 2019
The applicant claimed that he undertook a vigil in front of the Libyan embassy and posted messages on the [social media]. The dangers he faced in Libya were more than he imagined. He obtained a medical report from Libya which confirmed his claims – he couldn’t get it at the time he lodged the application because he lost contact with his family as they were continuously moving between the villages of Libya. His brother got the letter for him.
He had new claims to make as a militia group called the al-Qalaaa Martyrs regiment killed his father because of threats made to him and his brothers who served Gadhafi. He was told that [in] June 2018 he was told his father died by natural causes and he didn’t need to come to Libya.
His brother then told him he was subject to threats and on the day of his death his father headed into Misrata to complete some business. There was probably a group watching him, and he was hit by a car and trampled upon. He died and, while the death certificate said he died of respiratory illness the real cause was clarified in the forensic report.
Two brothers had now left to [Country 2]. After his own torture he didn’t approach a doctor in Australia because he improved and stayed at home for several weeks because the Libyan doctor said he only needed rest. His injuries weren’t life-threatening. He was mentally smashed and reluctant to see anyone on return to Australia.
AAT Hearing
The applicant was advised about s 438 certificates and that one related to his file. The documents that it covered were explained to him and he was advised that none of the information that it covered would inform the decision that would be made.
The applicant claimed that if he returned to Libya the militias controlling Misrata would kill him. This was because he was opposing them and had done so previously. The militia were Shuhada Qala’at and they had captured and tortured him previously. They were a sub-group of Kata’ib Sumud. They were based in the centre of Misrata and were occupying one of the schools. He was scared of all the militias in general when they began controlling Libya after Ghaddafi fell (the end of 2011) but first had this fear of Shuhada in 2015 after they kidnapped him.
There is no security in Lbya. He was advised that he had to articulate the personal harm that he feared if he returned to Libya. He claimed he would be killed because they had killed his father also. He had no other claims and was asked to expand on the claim.
He claimed that when the regime fell the militias were brutal to other Libyans. Because of this he opposed the militias controlling Libya because he believed that they would have freedom and democracy. When this didn’t occur he began criticising the militias. Asked when he began doing this and how he did it, he claimed that he did this via [social media] towards the end of 2013/early 2014. He chose [social media] because it was the biggest platform to get the best audience and it was important in the overthrow of Ghaddafi.
He claimed that he did not have any evidence of this and no longer put up anti-militia [social media] posts, although photocopies of what he claimed were [social media] posts/comments had been provided previously and were on his file. He stopped after he was tortured and returned to Australia. Asked if this wouldn’t have made him more angry, he claimed that he was but he had exposed his family to risk also. He believed that he was half the reason his father was killed. His last post was approximately in 2015 when he returned to Australia.
Asked if he had joined in any Libyan political parties in Australia or was active in them, he claimed he hadn’t as there weren’t any such groups in Australia. Even if they were they wouldn’t post on [social media] for fear of their families being harmed in Libya. Since he had been in Australia, he had returned to Libya at the end of 2011/early 2012 and then again in 2015.
He went in 2011 to visit his family – he wasn’t tortured but got into an argument with someone from a militia but couldn’t remember which. It was simply a verbal argument but he didn’t continue with it. In 2011 he flew into and departed from Tripoli airport; in 2015 he entered and departed via Misrata airport. He had no problems at Tripoli and entering Misrata but leaving his family paid someone to allow him to depart safely. The militia had previously captured and tortured him and demanded he not leave the country.
In 2015 he had lost hope fo staying in Australia, had no money and wanted to see his family. The DIBP said that there was no problem for him to return – asked to clarify what he meant, he claimed he made the decision but the DIBP had previously denied his protection visa application and said that he was able to go to Libya. Asked if he agreed with this decision, he said he didn’t agree completely but he wanted to see the family.
Asked why he didn’t visit them in [Country 2], he claimed that his parents didn’t have passports. Itw as put to him that they could have got them, and he said this would have taken a very long time as there was no organisation in the country. Asked how long it took to get a passport, he claimed that it took between 10-12 months after Ghaddafi fell. In 2015 it took two or three months.
It was put to him that this wasn’t very long and, given there was visa-free entry for Libyans[1] into [Country 2], and he was at risk in Misrata it was strange that he hadn’t given them notice of his arrival so they could get a passport and travel to [Country 2] where he would have been safe. He said his parents were elderly and it would be difficult for them to get passports and travel. At that stage he didn’t care much for his life and he didn’t want to wait. His mother also wasn’t well and had [medical] problems and he felt they could pass away at any time.
[1] [Source deleted], accessed 15 May 2019
It was put to him that he had said he didn’t want his parents to go to [Country 2] as they were elderly, it was hard to travel and his mother had [medical] problems and was very sick. Yet he had previously said in his statement that he had lost contact with his parents because they were continuously on the move between villages in Libya. He was asked how they were too sick to travel to [Country 2] but were able to roam around the villages of Libya.
He claimed that moving from village to village is not traveling long distances and they moved because they feared being killed. But from Misrata to [Country 2] is a long way. It was put to him that moving from village to village for fear of being killed must be very stressful for elderly sick people, and he was asked why they didn’t try to fly to [Country 2] from Misrata instead. He claimed that this was his decision to go to them not have them travel. His father was later killed because of him.
When he went in 2015 he stayed at home and just met with people he knew; his friends. In the beginning there were no problems. He was detained with two of his siblings. Six masked people came into their house and detained them and covered their heads. They were taken to [Prison 1]. Once they knew who he was, they released his two brothers.
He was alone in a room and in the first five to seven days he was tortured, beaten with rope. They demanded he sign a document saying he was an atheist and was against the revolution and was against the militias. Asked why they wanted him to sign this, he said he didn’t know but wanted to lay charges against him and this would justify it. Asked why they released his brothers, he claimed that they were aware of his social media profile criticising them. Asked if he was asked to go back onto [social media] and change his view regarding them so they got some positive PR, he claimed that they wanted him to give them names in Misrata of people who shared his views.
Asked how they tracked down his [social media] from all of the [social media] pages out there in the world, he claimed that he had no idea but perhaps they saw his posts on other social media pages. It was put to him that country information said there were 2.27 billion monthly active users on [social media] so he would have to be very unlucky for his posts to be randomly come across. Asked if his [social media] page was public or private, he claimed that it was public and had always been this way. Asked if he had copies of the comments he made on other people’s pages, he said that he had provided a number of them previously. They were in Arabic, a very few times in English.
He was detained for 25 days in prison and he was tortured and in some instances he was deprived of sleep and sometimes poured cold water on him. Asked if he was pretty badly beaten after 25 days, he said it was huge at the beginning. He was released after his father paid bail. He returned to Australia about 11 days after he made bail.
The doctor’s certificate he provided to the Tribunal (folio 59) stated that he needed ‘immediate health care and regular supervision by the general practitioner’. He was asked if he sought medical assistance on return to Australia and a regular series of GP checks, and he claimed he didn’t go to a doctor in Australia. He said that he just had x-rays. It was put to him that one couldn’t just get an x-ray and needed a doctor’s certificate. He said this was in Libya.
He claimed that he didn’t have a report, just this note and the film. It was put to him as a torture survivor, it was reasonable to assume that he would have gone to a doctor in Australia with the note, the film and got treatment for the month of torture he had been subject to. He claimed the doctor in Libya said there was nothing he could do for him. He just needed rest. It was put to him the note said he needed immediate health care and the applicant stated he just needed rest.
It was put to him that he had applied for protection once, been denied, went back and was tortured so it was reasonable to believe that he would have taken photos of his injuries so he could re-apply for protection. He was asked if there were any photos of his injuries, and he claimed that he was subject to torture for the first few days and then after that it was only questioning. When he came to Australia he was a psychological wreck. Asked if he sought any mental health treatment on return, he claimed he had no money.
Asked if he was on a health insurance plan as a student in Australia, he claimed that his insurance would cover the cost of a psychologist/psychiatrist and he just stayed at home. It was put to him that it would cover GPs, and he claimed that when he came he had a friend who was a doctor who told him he needed rest.
Asked if he had mentioned his friend/doctor previously as the member couldn’t recall this, he claimed he didn’t think he had, as it wasn’t an official doctor meeting. It was put to him that the Tribunal had great doubts that he was ever tortured in Libya as there was no physical, medical or photographic evidence and inconsistencies between what he claimed the doctor told him and what was in the letter. The story didn’t appear to hold together. And now there was a mysterious friend who was a doctor who hadn’t been mentioned previously but looked at an x-ray of a torture survivor and said he just needed some rest. This diagnosis appeared reckless at best.

He claimed that when he went to see the doctor in Misrata it was after 11 days and what he meant by medical care he needed someone who could prepare his food and be with him. But he couldn’t leave his home in Misrata.
After he arrived back in Australia he applied for protection immediately after. When he didn’t appear for his legal proceedings in Misrata, the militia were angry and went looking for. Asked if they did anything to his family such as detain a brother until the applicant presented himself to them, he claimed that they wished they had but they killed his father instead. This was [in] June 2018.
It was put to him that this was two years after he left and was asked why they waited for so long. He claimed that his family were constantly on the move over this time. They did this for two years. His father was [age] years old. It was put to him that the death certificate said he died of respiratory illness, which was quite natural for an [age] years old. He was asked why he thought he was killed, and he claimed that this was only for the civil registry paper. The report from the police and the forensic doctor was different.
It was put to him that one was handwritten and the other could have been produced on any home computer so it could be that the computer-generated death certificate was genuine and the others fraudulent. He claimed that they were genuine.
He was asked again why the militia would be targeting an [age] year old man two years after the applicant left the country. There didn’t appear to be any point – he hadn’t been active on social media for five years. He claimed that in his first application he had said that when he was released from prison his father signed as guarantor that he wouldn’t leave Libya. This was why they took revenge on him. It was put to him that the point would have been to get him to return to Libya to punish him, so kidnapping his brother may achieve this. But killing his father would not have made the applicant return.
He claimed that all his brothers had fled; some to [Country 2] and the others were constantly on the move in Liibya. He was killed solely for revenge. Asked if he had taken to social media to express his rage at the militia killing his father, he claimed he hadn’t. This was put to him as being strange, and he claimed he didn’t want to risk losing other members of his family. His brothers didn’t leave before his father was killed but did so after. They had worked in private jobs – one was a [Occupation 1], the other [worked in Occupation 2].
[One brother was in Occupation 2], [a second brother] was [in Occupation 1] and his third brother helped his [first] brother. His fourth brother was a [Occupation 3] in a [workplace] but stopped this after the incident and stayed with the family. His fifth brother doesn’t work and stays with his mother because recently she has troubles breathing.
Prior to this he worked for [a specified] company in Misrata. They had done these jobs when it was safe (after the revolution), but they stopped when it became dangerous. Before the revolution his [two] brothers were in the army. He then clarified the timing and said that they started these jobs after their lives were at risk and before this they worked in the city. The eldest worked for [an Industry 1] company, another as a [Occupation 4].
Asked if he still feared being targeted as a government scholarship holder, he claimed he didn’t really know the views of the militia. Country information[2] was put to him that government scholarship holders weren’t really of interest to people in Libya. He said that he didn’t claim that he would be targeted as a government scholarship holder (the claim was addressed in the Tribunal’s findings for completeness’ sake).
[2] DFAT Country Information Report – Libya, 14 December 2018
Country information[3] also indicated that protests were held and dispersed peacefully in Misrata, talks there were ongoing between militia groups, there was a desalination plant and steel plant there. This indicated economic activity and some freedom of expression. He claimed the economic development was there, but was all controlled by the militia. He claimed the militias assassinated the governor of Misrata. There was no safety and security.
[3] accessed 15 May 2019
It was put to him that the mayor was a high profile political figure and the applicant wasn’t. He agreed but said he was targeted because of his anti-militia opinions. It was put to him that he hadn’t done a [social media] post for four years and people protested in Misrata without problems. He was asked why he would protest in Misrata if he didn’t protest while in Australia where he was free to do so.
He claimed his family is dispersed and his father was killed. He didn’t want to risk their lives further. He claimed that if he went back to Libya and died it would be the Australian government’s fault. It was put to him that inconsistencies in his claim had been put to him.
He was advised about s 5J(6) of the Migration Act and it was put to him that his social media activity appeared to have been confined in time from the time he received a negative decision from the RRT until his refusal by the DIBP, at which point it ceased. There was a concern that he specifically chose a period that would give him a profile of someone politically active on social media. Once the Tribunal didn’t accept it, he ceased the activity. He claimed that after the RRT refused him he was very desperate and didn’t want to draw attention to his family in Libya. Unfortunately he had to go back to Libya and was tortured.
He was also told about s 424AA and it was put to him that he said he had lost contact with his family and they were roaming between the villages of Libya. Yet in 2014 he had claimed that nobody in his family had been forced to leave or had trouble, and in 2016 he told the Tribunal (later clarified as an interview with the DIBP in 2016) that his immediate family continued to reside in Misrata but his parents moved to their farm. These two accounts appeared to be inconsistent.
Under s 424AA it was also put to him that he had previously told the Tribunal that his [social media] settings were private, and he later changed it to public and posted comments on militia websites. Today he had never mentioned that he had privacy settings or that he had posted comments on militia websites.
He claimed that he hadn’t said his [social media] page wasn’t on private. He had said that all his views regarding the militia were public. He claimed that in the start there were no threats to his family but it got worse later and they became nomadic towards the end of 2016/end of 2017 once they began threatening his father.
The applicant claimed that his decision to return to Libya was an irrational decision and he was subject to torture. He blamed the Australian government for his father being killed in Libya. It was put to him that if he told the Australian government in 2013 that if he was sent back to Libya he would be killed, received a negative decision then went back voluntarily in 2015 even though he had years to run on his student visa, a reasonable person may query as to whether his original claim was true.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] August 2010. He applied for protection on 24 December 2012, refused by a delegate on 7 August 2013 and affirmed by the RRT [in] March 2014. He then lodged another application for protection sur place in October 2015. This was refused by a delegate on 8 June 2016.
The Tribunal has sighted the applicant’s passport and is satisfied that he is a citizen of Libya. He is a [age] year-old single Libyan male. He claimed that he feared being killed by militias controlling Misrata because he was opposed to them, because of his religion and because he may be imputed as a Ghaddafi supporter because he accepted a government scholarship.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claim in order to be granted a protection visa.
Imputed Ghaddafi Supporter
I do not accept that the applicant would be imputed with being a Ghaddafi supporter because he had accepted a government scholarship, or because his brothers and father served in Ghaddafi’s military. Country information indicates that because the Ghaddafi regime had been in power for 42 years, it is unlikely that Libyans with low level association with the regime would face discrimination on return to Libya and that recipients of government study abroad scholarships face a low risk of violence or discrimination on return to Libya.[4] Given that conscription was enforced in Libya, the same country information indicates that only senior military personnel or those that fought with Ghaddafi in 2011 were at high risk of discrimination. Neither the applicant nor his family were senior military officers or fought for Ghaddafi in 2011.
Targeted by Misrata Militia Group
[4] DFAT Country Information Report – Libya, 14 December 2018, pp 28-9
I do not accept that the applicant has or will be targeted by militia in Libya if he were to return to that country. Although he expressed similar concerns in his first protection visa application and claimed that when he went to Libya in 2012 he maintained a low profile and had to leave as soon as practically possible, he voluntarily returned there in following a negative protection visa decision from 9 June to 20 August 2015.
I do not accept that he did so because he missed his family, was behaving irrationally, lost hope of staying in Australia or that the Australian government found he had no problem returning. His willingness to return to the country is inconsistent with his sworn testimony with respect to his first protection claim regarding the harm he feared there. I also do not accept that he acted irrationally as it relies solely on his oral testimony which has been found to lack credibility, and he had to plan his trip given it required airfares to [Country 1] via a hub and then another airline to Libya. This would have taken at least some planning and two changes of aircraft, and is not indicative of an irrational mind at work.
While I accept that he may have missed his family, if he truly feared traveling there he could have arranged to meet them in [Country 2], where travel for Libyans is visa free. I do not accept that this was not an option as they had no passport and it took a long time to get one. By his own admission the time taken was two or three months, which is not excessive if one is interested in eradicating the possibility of being targeted by militias in Libya.
I also do not accept that they could not travel to [Country 2] as they were frail, elderly and his mother sick with a [medical] condition that meant she could pass away at any time. It lacks credibility that they could be this frail and sick and yet be able to live a nomadic life in Libya, moving from village to village for their safety. I do not accept that these distances are short, given his parents could have flown to [Country 2] to meet him if safety and road travel distance was an issue.
I also do not accept that the applicant was known as an anti-militia activist through his protest and social media activity, that he was ever detained by the militia, tortured and released on bail and that his father was then killed by the militia because the applicant left Libya. Given the time-limited nature of the [social media] activity (June 2014-March 2015), I am satisfied that it was done for the sole purpose of creating a refugee profile and therefore I have discounted the activity in accordance with s 5J(6) of the Act. I also do not accept that he posted comments on militia websites as he didn’t mention the claim during the hearing and offered no evidentiary support of the claim.
His claim regarding his detention and torture lacks credibility. Having allegedly been detained, then tortured for some days and released, he claimed in his statement that he had ‘ a smashed body and two broken ribs and that he continued to suffer pain all the period he spent in the family farm before he returned to Australia.
There is no photographic evidence of his injuries that may allow the Tribunal to give some weight to his claim. He provided what he claimed was a letter from a doctor in Libya (folio 28) that attests to his injuries. I lend it little weight as it is handwritten on a photocopied piece of letter headed paper. The letter states that ‘The injured needs immediate health care and regular supervision by the general practitioner’.
Despite this, he made no attempt to see any doctor on return to Australia. I do not accept that the doctor in Libya just said that he needed rest, as this is plainly inconsistent with what the note actually says. Nor do I accept that what the doctor meant was that what he needed was someone to prepare food for him and be with him, as this is also inconsistent with what was written. I also do not believe that he showed the x-ray to a doctor friend of his in Australia who said he just needed rest.
He had never mentioned this person before, nor did he provide his name or any supporting evidence from the doctor. It is also inconsistent with a statement he made prior to the hearing (folio 48) where he claimed that ‘I did not approach any doctor after my return to Australia.’ I do not accept that he hadn’t mentioned the doctor in Australia previously because ‘it wasn’t an official doctor meeting’. Regardless of what meeting it was, he claimed that he showed the doctor x-rays and the doctor gave him medical advice based on this. I believe that the reason he never mentioned it previously is because he fabricated this story in order to cover up an inconsistency between the Libyan doctor’s letter and his lack of action on return to Australia regarding his alleged injuries.
Because I don’t accept that the applicant is of any interest to the militia, it follows that the applicant’s family is not of interest to them for allegedly aiding his escape. I have taken into account some documents he provided (16, 19-22) that are allegedly arrest warrants, and bail documents but lend them little weight. I have already noted that the social media posts will not be taken into account, and the documents are typed and copied with no discernible security features.
I also do not accept that the applicant’s father was killed by the militia because the applicant escaped while on bail. To begin with, it lacks credibility that, if the militias were in control and angry that the applicant had left, that they would wait three years to kill his father and then do so in a hit and run accident. If they had been happy to attack the person’s house and detain three of his sons it makes little sense why they would pick such a random way of killing him if they wanted to.
I do accept that his father died of natural causes. The applicant provided two documents; one was a computer-generated death certificate for an [age] year-old man who died of respiratory disease (folio 62) and a copy of a typed letter from the Interior Ministry Criminal Investigation Organ (folio 63) saying the same man had been killed in a hit and run by a vehicle from the al-Qalaa Martyrs Regiment. Given the applicant’s demonstrated lack of credibility, I place more weight on a death certificate outlining a very elderly man died from natural causes than I do on a typed letter saying he died in a militia hit and run.
Other Issues
I do not accept that there is a real chance that the applicant will face serious harm based on his religious or actual/implied political beliefs. The lack of interest in the applicant for his political beliefs (which the Tribunal takes to mean anti-militia views) has been addressed above. He will not be imputed with pro-Ghaddafi views because of his scholarship and the militia groups had and will have no interest in him.
I also do not accept that the applicant would have to modify his views if he were to return, or that he had been accused of atheism. He had said in his original protection visa application in 2012 that he was a committed member of the Sunni faith, and there is nothing in the alleged arrest warrants that he provided that show him as being wanted for atheism.
Whilst he may differ in his interpretation of Sunni Islam from some of the more hard line Islamist groups, I do not accept that he will come to the attention of groups because of this. First and foremost he, like the militia groups is an observant Sunni Muslim. None of the social media posts he offered up took issue with the Islamic interpretations of the groups in Libya, nor has he indicated that the rest of his family have been targeted because of interpretive differences.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Although I have disregarded the applicant’s social media posts for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa). Given that the applicant had no political profile while in Libya, as well as the fact that there are over 2 billion active [social media] users,[5] I do not accept that there is a real chance that the applicant’s [social media] page is known, let alone was monitored by Libyan militia. Nor do I accept that he posted comments on militia websites given the lack of evidence of his having done so. In addition, he has not been active on it for the past four years, and the Tribunal cannot be certain that his site had public access as it is reliant on his oral evidence, which I have found lacks credibility.
[5] [Source deleted], accessed 17 April 2019
Because I do not accept that the applicant is or would be perceived to be opposed to the militias, atheist, that he was ever detained and tortured by the militias, would be perceived to be pro-Ghaddafi, or that his father was killed by the militia, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
I have taken into account country information that while security conditions vary across Libya, the overall environment is poor. I also note however, that this is a risk that is faced by the population generally, and not by the applicant personally. He has also stated that two of his brothers and his mother live in Misrata without problems from the militia. This indicates that the applicant’s family is not of interest to the militias.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Libya, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 5711

15 May 2019

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