1700682 (Refugee)

[2019] AATA 6866

1700682 (Refugee) [2019] AATA 6866 (16 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700682

COUNTRY OF REFERENCE:                   Libya

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 December 2019 at 12:10 pm (WA time)

DATE OF WRITTEN RECORD:                22 June 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that Applicant 2 satisfies s.36(2)(a) of the Act and (as members of the same family unit as Applicant 2), Applicant 1, Applicant 3 and Applicant 4 satisfy s.36(2)(b) of the Act.

Statement made on 22 June 2020 at 3:18pm

CATCHWORDS

REFUGEE – protection visa – Libya – imputed political opinion – perceived to be a supporter of Gadhafi – particular social group – women in Libya – past recipients of a Gadhafi scholarship – supporter of equal rights for women – western qualifications – progressive approach to Islam – member of the same family unit – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), ss 5, 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 4 January 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (the Act).

2. At the hearing on 16 December 2019 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 reasons for decision delivered at the hearing on 16 December 2019.

   DECISION

4. The Tribunal remits the matter for reconsideration with the direction that Applicant 2 satisfies s.36(2)(a) of the Act and (as members of the same family unit as Applicant 2), Applicant 1, Applicant 3 and Applicant 4 satisfy s.36(2)(b) of the Act.

   Dr Colin Huntly
   Member

   
   

   -Corrected Transcript-

   INTRODUCTION

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

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

   PROCEDURAL BACKGROUND

7. The applicant has appeared before the Tribunal on two occasions.  Firstly, on 12 November 2019 and again on 16 December 2019, to give evidence and present arguments.  The applicants were represented in this application by a registered migration agent.  Both hearings were held with the assistance of interpreters fluent in the English and Arabic standard languages.

8. The applicants previously applied for the grant of a protection visa in the prescribed form.  That application was refused by a delegate of the Minister in a decision dated 4 January 2017.  The applicants subsequently applied to this Tribunal for a review of that decision. 

9. Movement records indicate that Applicant 2 arrived in Australia on [date], travelling on the [student] visa of Applicant 2 (Applicant 2, having been the recipient of a ‘Gaddafi overseas travel scholarship’).  Applicant 1 arrived in Australia on [date].  Applicants 3 and 4 were born in [Australia}.

10. Applicant 1 was a dependant spouse of Applicant 2 under her student visa.  Applicant 2 successfully applied for a further student visa on the expiration of the first.

11. All applicants departed Australia on [date] to visit Libya.  They returned to Australia lawfully under the same student [visa].  As a family, they also visited [a named country] in 2014.  At all times, the applicants have been compliant with the relevant migration laws and regulations.

12. On 4 September 2014, Applicant 1 lodged the protection visa application on behalf of himself and his family.  At that time, the family unit comprised himself and Applicant 2, together with applicants 3 and 4 (being children of the relationship).  All applicants claim to be citizens of Libya. 

13. I have reviewed the relevant evidence contained in the Departmental file, including their Libyan passports.  I find on the basis of this evidence, that all applicants are citizens of Libya which is also the receiving country for the purposes of the refugee and complementary protection assessments.

14. In passing, I note that a third child, who is not an applicant for the purposes of this review, was born to Applicants 1 and 2 in [Australia].  As the Tribunal has no jurisdiction with respect to this child, no findings and no decision have been made with respect to that child for the purposes of this review.

15. 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. 

    CONSIDERATION 

16. At the first hearing with the Tribunal and again when I met with you today, I told you the documents I have in my possession.  You confirmed that I had all the relevant material before me.  I read to you the summary of your claims for protection, contained in the delegate’s record of decision (at pages 5 and 6), which are as follows:

    ·Applicant 1 fears persecution on the grounds of his imputed political opinion, as a recipient of the Gadhafi scholarship. 

    ·He is perceived to be a supporter of Gadhafi. 

    ·He also claims that his brother was a member of [the armed forces], under the Gadhafi regime.

    ·Claims he was [persecuted] on his return to Libya in [year]. 

    ·He fears persecution on the grounds of his membership of the Al Malawi Tribe. 

    ·He claims that his wife, who is [an Occupation 1], will not be allowed to work in [Libya] because she is a woman and he also fears for the safety of his family in Libya.

17. I asked you at the first hearing if this was a fair and accurate summary of your claims for protection and you said ‘Yes’.  I asked you if there was anything you would like to add to your claims, and you said ‘No’.  I asked you if you were happy for me to proceed on the basis of the information I had before me and you said ‘Yes’.

18. Having referred to the delegate’s record of decision, the findings relating to Applicant 1’s claims for protection are well reasoned and reasonably made.

19. I have, however, had regard to more recent country information, in particular DFAT Country Information Libya, 14 December 2018; United Kingdom Home Office Country Policy and Information Note Libya, Actual or perceived support for former President Gadhafi, April 2019. 

20. While I recognise that these sources of country information indicate that conditions have worsened since the delegate’s decision, I find that the delegate’s findings with respect to Applicant 1’s political profile are reasonably made and are broadly consistent with available country information.

21. I particularly note that, in the course of the consideration of this application prior to coming before me, Applicant 2’s claims for protection were not well articulated.  At the hearing on 16 December 2019, I had the opportunity to question Applicant 2 in some detail.  She confirmed for me that all of her former female colleagues in the medical profession with whom she is still in contact, have left that country.

22. It is apparent that the Libyan state-sponsored medical system has collapsed and access to medical services are politically and religiously filtered and controlled.  Medical professionals (particularly women) are subject to a level of physical assault that rises above that which is experienced generally in that country. 

23. Applicant 2 also made it clear in her evidence that she has adopted a different way of living since she left Libya.  She claims that she is staunchly against any religious or political restrictions on her beliefs and thoughts and that she would not accept the sort of restrictions that would be placed on her ability to live and work as she sees fit if she was to return to Libya, now and in the reasonably foreseeable future.  I find that these claims are both credible and sincerely held.

24. I questioned both Applicant 1 and Applicant 2 about the challenges that would be faced by their children if they were to return to Libya; that their lack of familiarity with the language and customs (particularly the religious customs) which are enforced in Libya would make them a target of significant physical harassment and threat by religious sects in that country due to unfamiliarity with relevant orthodox Muslim practices.  When asked about their religious beliefs, both Applicant 1 and Applicant 2 described themselves as sincere observant Muslims, following the Sunni prophets.  However, they both stressed that they were following a ‘middle pathway’, as they described it, adopting the Muslim faith as a matter of belief rather than purely as a matter of strict outward practice.  I found this evidence by Applicant 1 and 2 to be both sincere and credible.

    COUNTRY INFORMATION. 

25. 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, [

26. 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, [ ]

27. This corresponds with the more recent DFAT Report for Libya (14 December 2018)[5] and the UK Home Office Country Policy and Information note relating to women’s rights activists.[6]

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

    [6]At p.26–29.

28. 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.”  In addition I have reviewed a number of submissions from the applicants which refer to other sources of country information, all of which is generally consistent with the foregoing country information I have summarised.

    [7][ (accessed 8 November 2019).

    FINDINGS

29. For the purposes of s.5J(5) of the Act, and on the basis of the country information I have surveyed, I find there is a real chance that Applicant 2 would face serious harm in Libya.  In making this finding, I have taken account of the evidence presented at the hearings and in written submissions.  I have also had particular regard to DFAT’s assessment of the overall dire security situation throughout the country.  The Australian government’s official travel advice about the security situation in the country, and the United Kingdom government’s advice of generalised violence in the country is also noted. 

30. I further find that Applicant 2 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 she is a member of a particular social group, namely, women in Libya who are past recipients of a Gadhafi scholarship, committed to advancing equal rights for women in that country, following a progressive approach to Islam, and who hold western medical qualifications, being innate or immutable characteristics of members of the group that are also shared by the applicant. 

31. 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 either unable to 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.

32. 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.  But I note that that does not apply to something fundamental to a person’s identity. 

33. 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 a receiving country if relocating carries with it the need to avoid persecution by living discretely or otherwise being invisible.  The reason for this is self-evident.  It would not be reasonable to the applicant to modify her behaviour to avoid offending parties controlling specific areas of Libya or to otherwise hide her membership of the particular social group, women in Libya who are past recipients of a Gadhafi scholarship, committed to advancing equal rights for women in that country, following a progressive approach to Islam, and who hold western medical qualifications,  because to do so, would be to accept the persecution that her membership of the group exposes her to in that country. 

1. The UNHCR reports I have had access to indicate that instances of arbitrary violence in Libya are commonplace, there is widespread sewing of land mines, and a shortage of access to shelter and food throughout the country.

2. Even against the background of such dire circumstances of general application, Applicant 2 would be exposed to a systematic and discriminatory form of harm, amounting to serious harm for the purposes of the Act.  For the purposes of s.36(2)(b) of the Act, I note that Applicants 1, 3 and 4 are members of the same family unit as Applicant 2 and have applied for visas of the same class as Applicant 2, in fact, all on the same application.

   CONCLUSIONS

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

4. I find that Applicant 2 has a well-founded fear of persecution in Libya, now and in the foreseeable future.  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 she is a member of a particular social group, women in Libya who are past recipients of a Gadhafi scholarship, committed to advancing equal rights for women in that country, following a progressive approach to Islam, and who hold western medical qualifications, being innate or immutable characteristics of members of the group that are also shared by the applicant.

5. This real chance of significant physical harassment and significant physical ill treatment is systematic and discriminatory and relates to all areas of Libya, now and in the foreseeable future.  I further find that pursuant to s.5J(3)(b) of the Act, it would be impractical and unreasonable to expect Applicant 2 to modify her behaviour to reduce any real chance of significant physical harassment and significant physical ill treatment to the relevant level due to her membership of the particular social group.

6. Based on my previous findings, I find that Applicant 2 would not be able to secure effective state protection against this harm for the purposes of s.5LA of the Act.  Given that Applicants 1, 3 and 4 are members of the same family unit as Applicant 2, I find that Australia owes those applicants protection on the basis derivatively under s.36(2)(b) of the Act. 

7. For reasons I have also given above, I note that my findings do not apply to your youngest child, born on [date]. 

   DECISION 

8. The Tribunal remits the matter for reconsideration with the direction that Applicant 2 satisfies s.36(2)(a) of the Act and (as members of the same family unit as Applicant 2), Applicant 1, Applicant 3 and Applicant 4 satisfy s.36(2)(b) of the Act.

   END OF ORAL DECISION  [12.12 pm]