1703050 (Refugee)

[2019] AATA 6886

1703050 (Refugee) [2019] AATA 6886 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703050

COUNTRY OF REFERENCE:                   Libya

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         3 December 2019 at 3:53 pm (WA time)

DATE OF WRITTEN RECORD:                13 July 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decisions under review with the direction that the applicants satisfy s.36(2)(a) of the Act.

Statement made on 03 August 2020 at 9:32am

CATCHWORDS

REFUGEE – protection Visa – Libya – imputed political opinion – supporter of previous regime – particular social group – recipient of a Gaddafi scholarship – sub-Saharan ‘Black Libyans’ – former military service – relocation not reasonable – decision under review remitted  

LEGISLATION

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

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.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 13 February 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (the Act).

2. At the hearing on 3 December 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. A corrected transcript of the oral reasons for decision is attached to this statement.

   DECISION

4. The Tribunal remits the decisions under review 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  [3.08 PM]

   Introduction

5. MEMBER:  The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Regulations.

6. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds. 

7. Where relevant, I have 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.

   Background

8. The applicants appeared before the Tribunal on two occasions.  Firstly, on 12 November 2019 and again on 3 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 by means of the English and Arabic standard languages.

9. The applicants previously applied for the grant of a protection visa.  That application was refused by a delegate of the Minister in a decision dated 13 February 2017.  The applicants applied to this Tribunal for a review of that decision.

10. They arrived [in] January 2012 travelling on a [Student] visa, which had been granted to Applicant 2 on 26 January 2011.  This Student visa was reissued on 21 March 2012 (at the commencement of Applicant 2’s [higher education] studies) as a [further] Student visa. 

11. The applicants returned to Northern Africa (including Libya), [in] December 2013.  They returned to Australia on the same Student visa [in] February 2014. 

12. On 24 February 2015 Applicant 1 lodged the protection visa application.

    Identity

13. Applicant 1 and Applicant 2 are married.  Applicant 3 and Applicant 4 are children born to this relationship.  All applicants claim to be citizens of Libya. 

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

15. There is no evidence before me 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.

    Proceedings

16. At the first hearing with the Tribunal on 12 November 2019 and again before the Tribunal on 3 December 2019 I told you the documents I had in my possession and you confirmed that I had all of the relevant material before me. 

17. Also, at the start of each hearing, I confirmed with you the summary of your claims for protection as contained in the delegate’s record of decision, which is as follows:[1] 

    ·     The applicants fear persecution on the grounds of their imputed political opinion and membership of the particular social group, recipients of a Gaddafi scholarship. 

    ·     Applicant 1 also fears harm to his children at the hands of non-State agents, namely, kidnapping.

    [1]At p.4.

18. I asked you if this was a fair and accurate summary of your claims for protection and you said ‘Yes’, but you were also concerned about the treatment of women in Libya and dark-skinned Libyans. 

19. I note that the delegate essentially did not accept that Applicant 1 had a sufficient political profile in Libya to warrant protection in Australia and expressed concerns about the credibility of the claims given that both Applicant 1 and Applicant 2 had returned to Libya in 2013.  The delegate also did not accept that country information supported the claim that recipients of a Gaddafi scholarship would face systematic and discriminatory persecution on return to Libya. 

20. For these reasons the delegate found that you were not owed protection by Australia under either s.36(2)(a) or s.36(2)(aa) of the Act.

    Country information

21. As discussed in a previous decision of this Tribunal, differently constituted,[2] 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.[3]  This may have provided a window of opportunity for people such as the applicant to return to Libya without repercussion prior to early 2014. 

    [2]1601312 (Refugee) [2018] AATA 2616 (24 May 2018).

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

22. 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:[4]

    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.

    [4]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. 

23. An assessment of Libya’s near future from the International Crisis Group[5] 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.

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

24. This corresponds with the more recent Department of Foreign Affairs and Trade (DFAT) Report for Libya (14 December 2018)[6] and the UK Home Office Country Policy and Information note (February 2019) relating to ethnic minority groups;[7] and relating to actual or perceived supporters of former President Gaddafi (April 2019).

    [6]See: [3.9]-[3.28] (‘Black Libyans’).

    [7]Generally, and at [4.2] in particular.

25. The Australian Government’s official travel advice[8] 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.

    [8][ (accessed 8 November 2019).

    Findings

26. Accordingly, for the purposes of s.5J(5) of the Act and on the basis of this country information, I find that there is a real chance that the applicants would face serious harm for present purposes in Libya 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 security situation in that country and the United Kingdom Government’s advice of generalised violence in that country.

27. 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, which is referred to as ethnically sub-Saharan ‘Black Libyans’ being innate or immutable characteristics of members of the group that are also shared by the applicants.

28. 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.

29. 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 which is fundamental to a person’s identity.  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.

30. The reason for that is self-evident.  It would neither be reasonable or possible for the applicants to modify their behaviour to avoid offending parties controlling significant areas of Libya or otherwise hide their membership of the particular social group referred to in the relevant country information as ethnically sub-Saharan ‘Black Libyans’ being innate or immutable characteristics of group members that are also shared by the applicants.

31. The most recent DFAT report for Libya shows that the overall security situation in that country is dire.  The UNHCR reports that I have had access to indicate that there are many instances of violence, sowing of landmines, and a shortage of access to shelter and food throughout the country.  Even in such a dire circumstance these applicants would face systematic and discriminatory harm.  As I have demonstrated, that harm if returned, would be serious harm for the purposes of the Act.

32. Although not necessary for present purposes I also note for completeness that there are additional factors which are applicable to both Applicant 1, namely his former service in the Revolutionary Guard Corp, and Applicant 2, namely as an educated woman and recipient of a Gaddafi scholarship, all of which would take their individual risk profiles well above the requisite threshold of harm that would attract Australia’s protection obligations under s.36(2)(a) of the Act.

    Conclusions

33. 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 I am satisfied that your evidence is credible and is materially consistent with important aspects of country information. 

34. I find therefore that you have a well-founded fear of persecution in Libya now and in the reasonably 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 you are members of a particular social group referred to in relevant country information as ethnically sub-Saharan ‘Black Libyans’ being innate or immutable characteristics of members of the group that are also shared by all of the applicants.

35. 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 reasonably foreseeable future.

36. I further find pursuant to s.5J(3)(b) of the Act that it would be impractical and unreasonable to expect you to modify your behaviour to reduce your real chance of significant physical harassment and significant physical ill treatment due to your membership of the particular social group referred to in relevant country information as ethnically sub-Saharan ‘Black Libyans’.  Based on all of this I further find you would not be able to secure effective State protection for the purpose of s.5LA of the Act.

37. For the reasons I have given above I find that the applicants are persons in respect of whom Australia has protection obligations, noting that my findings do not apply to the youngest child of Applicant 1 and Applicant 2, who was born in Australia on [date] but that the applicants to this application satisfy the criteria set out in s.36(2)(a) of the Act.

    Decision

38. 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  [3.53 PM]