1700580 (Refugee)

[2020] AATA 3122

1700580 (Refugee) [2020] AATA 3122 (14 January 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1700580

COUNTRY OF REFERENCE:                   Libya

MEMBER:  Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         14 January 2020 at 11:34 am (WA time)

DATE OF WRITTEN RECORD:                17 July 2020

PLACE OF DECISION:  Perth

DECISION:  The Tribunal remits the matter for reconsideration

with the direction that the applicants satisfy s.36(2)(a) of the Act.

Statement made on 17 July 2020 at 1:08pm

CATCHWORDS

REFUGEE – protection visa – Libya – imputed political opinion – opposition to religious and political views enforced by militias – particular social group – politically prominent families – recipients of Gaddafi Scholarship – western educated – returnees from the west – fear of kidnapping – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 5LA, 36
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.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 3 January 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (the Act).

2. At the hearing on 14 January 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this statement is a corrected transcript of the oral decision with reasons that was delivered by the Tribunal in person to the applicants.

   DECISION

4. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Act.

   Dr Colin Huntly
   Member

-Corrected Transcript-

ORAL DECISION OF MEMBER HUNTLY [10.59 am]

Introduction

1. MEMBER: The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complimentary protection grounds.

2. Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department on refugee law and complimentary protection together with any country information in accordance with Ministerial Direction No.84.

   Proceedings

3. The applicants appeared before the Tribunal on three occasions. Firstly, on 12 November 2019, then on 2 December 2019, and finally on 14 January 2020 to give evidence and present arguments.

4. The applicants were represented in this application by a registered migration agent. All hearings were held with the assistance of interpreters fluent in the English and Arabic standard languages.

   Application history

5. The applicants applied for the grant of a protection visa on 31 July 2015. That application was refused by a delegate of the Minister in a decision dated 3 January 2017. The applicants have applied to this Tribunal for a review of that decision.

6. The applicants arrived in Australia [in] September 2010 travelling on a [student] visa, which was granted to Applicant 2. The family’s travel to Australia was partly funded by a scholarship from the former Gaddafi Government, which is referred to colloquially in the relevant country information as a ‘Gaddafi Scholarship’. This visa to study in Australia was reissued to Applicant 2 a number of times. Evidence before the Tribunal indicates that the applicants have, at all times, complied with the relevant visas issued to them.

7. Movement records indicate (and Applicant 1 confirms) that Applicant 1 returned to Libya [in] June 2014, remaining in that country for approximately two weeks, before returning to Australia. It is incorrectly noted in the delegate’s record of decision that Applicant 1 remained in that applicant for three months. Applicant 1 again left Australia in September 2014 to [Country 1]. During that visit of two weeks, no attempt was made by Applicant 1 to return to Libya. The Tribunal notes that all applicants holidayed briefly in [Country 2] in January 2014.

   Identity

8. On 31 July 2015, Applicant 1 lodged the protection visa application on behalf of the family unit. Applicant 1 and Applicant 2 are married. Applicants 3, 4, 5 and 6 are children born to this relationship. All applicants claim to be citizens of Libya.

9. The Tribunal has reviewed the relevant evidence contained in the Departmental file, including the relevant passports, and finds on the basis of the evidence before it that all applicants are citizens of Libya, which is also the receiving country for the purposes of the refugee and complementary protection assessments.

10. There is no evidence before the Tribunal to suggest that any of the applicants have a right to enter and reside in a third country for the purposes of s.36(3) of the Act.

    Hearings

11. At the first hearing I told you what documents I had in my possession and you confirmed that I had all the relevant material before me.

12. Also at the start of each hearing I confirmed with you the summary of your claims for protection contained at page 4 of the delegate’s record of decision, which is as follows:

    ·     The applicant fears persecution on the grounds of his imputed political opinion and his membership of a particular social group “Returnees from the west”.

    ·     He also fears harm to his children (kidnapping) at the hands of non-State agents.

13. I asked if these were a fair and accurate summary of your claims for protection and you said “Yes”.

14. I noted that the delegate essentially did not accept that Applicant 1 had a significant political profile in Libya sufficient to warrant protection in Australia and also expressed concerns about the credibility of Applicant 1’s claims, given the lateness of his application for protection and the return visit to Libya in 2014.

15. For these reasons the delegate found that you are not owed protection in Australia under s.36(2)(a) or s.36(2)(aa) of the Act.

    Country information

16. As discussed in a previous decision of this Tribunal, differently constituted,[1] country information supports the applicant’s evidence in that it shows there was an interim period of civil rule in Libya following the overthrow of the Gaddafi regime. One source from November 2014 suggested that Libya saw ‘an explosion of civil society’ in the immediate aftermath.[2] This may have provided a window of opportunity for people such as the applicant to return to Libya without repercussion prior to early 2014.

    [1] 1601312 (Refugee) [2018] AATA 2616 (24 May 2018)

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

    Country information also shows there has been a significant decline in domestic security after the applicant’s 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 these deteriorating conditions and mentions the applicant’s home city of Tripoli:[3]

    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.

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

    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[4] in February 2015 stated:

    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.

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

    This corresponds with the more recent DFAT Report for Libya (14 December 2018)[5] and relevant UK Home Office Country Policy and Information Notes and is entirely consistent with evidence provided by both Applicant 1 and Applicant 2 at the hearing..[6]

    [5] See: [2.37]–[2.46] (security and humanitarian situation); [3.59]-3.66] (women); and, [3.71]­[3.74] (children).

    [6] UK Home Office, Country Policy and Information Note Libya: Actual or perceived supporters of former President Gaddafi, April 2019 generally; and, Country Policy and Information Note Libya: Security and humanitarian situation, January 2018 at (17)-(29).

17. The Australian government’s official travel advice[7] concerning Libya currently is ‘Do not travel to Libya due to ongoing fighting and the volatile security situation.’

    [7] >

    I also note that a number of submissions from the applicants’ migration agent containing country information area also generally consistent with the foregoing country information I have summarised.

    Findings

18. With respect to the delegate’s decision record in the first instance I note in passing that the findings appear to have been based largely on a misconception of Applicant 1’s travel history and that the consideration (such as it was) of the implied claims relating to Applicant 2’s gender; the particular vulnerabilities of the children; and the imputed status of the family as having become ‘westernised’ during their years in Australia, are not well considered.

19. This may, perhaps, have led the delegate in the first instance to draw erroneous conclusions. These misconceptions on the part of the delegate in the first instance and failures to inquire, materially render the delegate’s decision in the first instance unsafe.

20. I have considered the applicants’ true circumstances and have also had the opportunity to consider more detailed and more recent country information for the purposes of s.5J(5) of Information Note Libya: Security and humanitarian situation, January 2018 at (17)-(29).of the Act. On the basis of the country information referred to above, I find that there is a real chance that the applicants would face serious harm for present purposes in Libya.

21. With particular reference to DFAT’s assessment of the overall dire security situation throughout that country, the Australian Government’s official travel advice about the country, the United Kingdom Government’s advice relating to generalised violence in that country, I further find that the applicants would face a real chance of significant physical harassment and significant physical ill treatment in Libya now and for the reasonably foreseeable future for the essential and significant reason that they are all members of a particular social group, namely members of politically prominent families in Libya who are recipients of Gaddafi Scholarship and are western educated and who are conscientiously opposed to the religious and political views enforced by the present militias who are in effective control of the majority of that country (the particular social group).

22. I note that harm from non-State agents may amount to persecution for the purposes of the Act if the motivation of the non-State actors relates to one of the reasons contained at s.5J(1)(a) of the Act and the State is unable or unwilling to provide adequate protection against the harm where, as in the case of Libya, the functions of the State are discharged in an arbitrary and ad hoc basis by lawless armed thugs and extremist organisations and not under any form of legitimate legal system for the purposes of s.5LA(2) of the Act.

23. I note that s.5J(3) of the Act provides that a person does not have a well-founded fear of persecution where they can reasonably modify their behaviour. However, I note that this does not apply to something which is fundamental to a person’s identity.

24. In the context of what is reasonable under this provision I note that the well-founded fear of persecution cannot be regarded as being restricted to a single part of the receiving country if relocating carries with it the need to avoid persecution by living discretely or otherwise being invisible.

25. In this respect I note the evidence you have both given to me at the final hearing which I believe to be credible and sincere, that you would each find it unacceptable to conform to the religious practices and views of the enforcing militias by expressing your religious beliefs on a day to day basis in a way that you do not wish to.

26. It would neither be reasonable nor possible for the applicants to modify their behaviour to avoid offending parties controlling significant areas of the country or otherwise hide their membership of the particular social group being innate or immutable characteristics of group members that are also shared by the applicants.

27. In addition to the most recent DFAT report for Libya, which demonstrates that the overall security situation in that country is dire the UNHCR reports I have had access to indicate that there are many instances of random violence, sowing of landmines, a shortage of access to shelter and food throughout the country, even against the background of such dire circumstances I am satisfied that these applicants would face systematic and discriminatory harm if returned to that country. As discussed above, that harm, if returned, would be serious harm for the purposes of the Act.

28. Although not necessary for present purposes I would also note for completeness that there are additional factors that are applicable to both Applicant 2 and the children of Applicant 1 and Applicant 2. With respect to Applicant 2 as an educated woman and the recipient of a Gaddafi Scholarship, this would take her individual risk profile well above the requisite threshold of harm required by s.36(2)(a) of the Act.

29. I also note that a similar finding would be required with respect to the children of Applicant 1 and Applicant 2 and I make this observation with reference to DFAT’s observations in its most recent report referred to above.

    Conclusions

30. I have considered each of the integers of your claims for protection individually and then cumulatively. Taking my findings of fact together with the relevant country information I have surveyed above I am satisfied that the evidence you have provided is both credible and materially consistent with important aspects of country information.

31. I find therefore that you do have a well-founded fear of persecution in Libya now and in the reasonably foreseeable future.

32. I further find that this fear of persecution is for the essential and significant reason of grounds articulated in s.5J(1)(a) of the Act, namely that you are all members of a particular social group being members of politically prominent families in Libya who are recipients of a Gaddafi Scholarship who are western educated and who are conscientiously opposed to the religious and political views enforced by the present militias which effectively control the majority of that country being innate or immutable characteristics of members of the group that are also shared by all members of the family unit.

1. This real chance of significant physical harassment and significant physical ill treatment is discriminatory and relates to all the areas of Libya now and in the reasonably foreseeable future.

2. I further find pursuant to s.5J(3)(b) of the Act that it would be impractical and unreasonable to expect the applicants to modify their behaviour to reduce the real chance of significant physical harassment and significant physical ill treatment due to their membership of the particular social group referred to above.

3. Based on all of this I further find that the applicants would not be able to secure effective State protection in Libya for the purposes of s.5LA of the Act.

4. For the reasons I have given above I find that all applicants are persons in respect of whom Australia has protection obligations under s.36 of the Act.

   Decision

5. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Act.

   END OF ORAL DECISION [11.34 am]