1704690 (Refugee)

[2019] AATA 6868

1704690 (Refugee) [2019] AATA 6868 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704690

COUNTRY OF REFERENCE:                   Libya

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         18 December 2019 at 11:34 am (WA time)

DATE OF WRITTEN RECORD:                3 July 2020

PLACE OF DECISION:  Perth

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

Statement made on 03 July 2020 at 11:50am

CATCHWORDS
REFUGEE – protection visa – Libya – imputed political opinion – senior position at university ­– advocate for the Gaddafi revolutionary ideology – recipient of Gaddafi scholarships – particular social group – actual or perceived supporters of former President Gaddafi – women – voluntary return to Libya – interim period of civil rule – significant decline in domestic security – harm from non-state agents – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a Delegate of the Minister for Immigration on 7 March 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (the Act).

2. At the hearing on 18 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 18 December 2019.

   DECISION

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

   Dr Colin Huntly
   Member

   
   

   -Corrected Transcript-

   ORAL DECISION OF MEMBER HUNTLY  [11.05 am]

   INTRODUCTION

5. MEMBER: The criteria for a protection visa are set out in s.36 of the Act (Migration Act 1958) and Sch.2 to the Regulations (Migration Regulations 1994).  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.

   IDENTITY.

7. Applicant 1 and 2 are married.  Applicants 3, 4, 5, 6, 7 and 8 were born to this relationship.  Accordingly, I find that they are all members of the same family unit for the purposes of the Act.  All applicants claim to be citizens of Libya. 

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

9. There is no evidence 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.

   PROCEDURAL BACKGROUND.

10. The applicants appeared before the Tribunal on two occasions, firstly on 12 November 2019 and again on 18 December 2019, to give evidence and present arguments.  The applicants were represented in this application by a registered migration agent who attended the hearings by telephone.  Both hearings were held with the assistance of interpreters fluent in the English and Arabic standard languages.

11. The applicants applied for the grant of a protection visa on 12 November 2015.  This application was refused by a Delegate of the Minister in a decision dated 7 March 2017. 

12. The applicants have applied to the Tribunal for a review of that decision.

13. Applicants 1, 2, 3, 4 and 5 arrived in Australia [in] February 2011, travelling on a [student] visa which had been issued to Applicant 1.  Applicants 6, 7 and 8 were born in Australia subsequent to this date.

14. On 3 April 2012 Applicant 1 applied for a further [student] visa and this was issued on 5 April 2012.  [Between] June 2013 [and] July 2013, Applicant 1 returned to Libya to visit family. 

15. On 12 November 2015 the applicant lodged the protection visa application.  There is no evidence on any of the files available to the Tribunal to suggest that any of the applicants have breached any of the requirements of the relevant visas.

    Proceedings before the Tribunal

16. At the first hearing on 12 November 2019 I told you what documents I had in my possession.   At the start of both hearings I confirmed with you the summary of your claims for protection from the Delegate’s Record of Decision, which are as follows:[1]

    In essence, the applicant fears persecution on the grounds of his imputed political opinion. 

    He claims that because of his senior position at the university during Gaddafi regime and as a recipient of Gaddafi scholarships he is perceived as being pro-Gaddafi. 

    He claims that when the revolution and war broke out in Libya he ‘became wanted by the revolutionaries, activists and the militia organisations in that country.’

    He claims that when he visited Libya in 2013, that [these parties] ordered his arrest and were searching for him and in the process they bombed and destroyed his family home and he was ‘extremely terrified’ for his safety. 

    He claims that there is an ‘arrest warrant’ issued against him as a former Gaddafi supporter.  The applicant also fears his family will suffer harm (kidnapped and killed) at the hands of the revolutionaries and also due to generalised violence in Libya. 

    He also fears general insecurity in Libya and that his children will suffer as the result of the destruction by war of the health and education infrastructure in Libya.

    [1]At p.5.

17. At the first hearing I asked you if this was a fair and accurate summary of your claims for protection and you said, ‘Yes’. 

18. I asked you if there was anything in the documents before me that you needed to change and you said, ‘No’. 

19. I asked you if there was anything you would like to add to your claims for protection and you said, ‘Yes’.  You then explained that your previous distrust of authority and your fears for your safety meant that you did not disclose all relevant information at the first instance, or explain the full range of your activities in support of the Gaddafi regime prior to the war.  I acknowledge receipt of submissions to this effect made in the course of this review.

20. I note that the Delegate essentially did not accept that you had a sufficient political profile in Libya to warrant protection in Australia; expressed some doubts relating to the supporting documents you provided; questioned your return visit to Libya; and, questioned the timing of your application for protection as indicating that those claims lacked credibility.

21. For those reasons, the Delegate found that you were not owed protection by Australia under either ss.36(2)(a) or 36(2)(aa) of the Act.

    COUNTRY INFORMATION 

22. 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, (accessed 8 November 2019).

23. 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, (accessed 8 November 2019).

24. 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[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, (accessed 8 November 2019).

25. This corresponds with the more recent DFAT Report for Libya (14 December 2018)[6] and relevant UK Home Office Country Policy and Information notes.[7]

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

    [7]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).

26. 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.’ 

    [8] (accessed 8 November 2019).

27. 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.

    Findings

28. Given their own associations and the wider associations of their extended family within the former regime, and on the basis of the country information I have referred to, for the purposes of s.5J(5) of the Act, I find that the applicants genuinely hold a well‑founded fear of serious harm should they return to Libya now or in the reasonably foreseeable future.

29. Having reviewed the applicants’ evidence, and having had the opportunity to interview the applicants in person at hearings, I find that Applicant 2 has a sufficient profile now or in the reasonably foreseeable future, as an actual or perceived supporter of former President Gaddafi in Libya due to her former activity as a life-long advocate for the Gaddafi revolutionary ideology and also due to her profile within the university system within that country as a senior academic.

30. It is persuasive to me that Applicant 2 is a former recipient of not one, but two, ‘Gaddafi scholarships’.  This is indicative of the status that she held within the academic community in that country under the former regime.  I also accept the evidence of Applicant 2 relating to the former activity of her father as a senior decision-maker within the Gaddafi Investment Fund within its ‘African Development Program’.

31. These considerations satisfy me, given the country information surveyed above, that this family unit would face a real chance of persecution in Libya now or in the reasonably foreseeable future as actual or perceived supporters of former President Gaddafi.

32. For the purposes of this decision, I have expressed this as being that all members of this family unit are members of a particular social group, namely, actual or perceived supporters of former President Gaddafi.

33. I further find that the applicants 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 members of the particular social group, namely, actual or perceived supporters of former President Gaddafi, being innate or immutable characteristics of the group which are shared by all of the applicants.

34. I note that harm from non-state agents may amount to persecution under the Act if the motivation of the non-stage actors relates to one of the reasons contained in s.5J(1)(a) of the Act and the state is either 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.

35. I note that this is reflected in the UK Home Office’s country relevant information assessment as follows:[9]

    Where a person can demonstrate that they are at risk of persecution or
    serious harm due to their actual or perceived association with, membership
    of, or support for, the previous Gaddafi regime or the Gaddafi family, they
    are unlikely to be able to avail themselves of the protection of the authorities

    given the collapse of the rule of law in Libya.

    [9]UK Home Office, Country Policy and Information Note Libya: Actual or perceived supporters of former President Gaddafi, April 2019 at [2.5.1].

36. 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.  As the perceived harm in this case relates directly to the actual identity of the applicants, I find that s.5J(3) of the Act is not of assistance in assessing this particular application, as it is not relevant.

37. Although it is not necessary for present purposes, I also note for completeness, that there are additional factors that are applicable to Applicant 2 and Applicant 4, namely that they are women.  This also is a particular recognised aggravating risk factor for persons returning to Libya now and in the reasonably foreseeable future, based on any reasonable reading of the available country information.

38. I also note that the younger children of Applicants 1 and 2 are particularly vulnerable on the basis of their age and unfamiliarity with conditions in Libya, which would increase their risk profiles further.

    CONCLUSIONS

39. I have considered each of the integers of the claims for protection individually and then cumulatively presented by both Applicant 1 and Applicant 2.

1. Taking the findings of fact I have already made, together with relevant country information referred to above, I am satisfied that your evidence has been both credible and is materially consistent with important aspects of country information. 

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

3. 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 all applicants are members of a particular social group, being actual or perceived supporters of former President Gaddafi, being innate or immutable characteristics of members of the group that are also shared by all of the applicants.

4. 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.

5. 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 identified above.

6. Based on these findings, I further find you would not be able to secure effective state protection for the purposes of s.5LA of the Act.

7. Accordingly, I find that all applicants are persons in respect of whom Australia has protection obligations.

   DECISION.

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

9. The time is 11.39 am Western Standard Time.

   END OF ORAL DECISION  [11.39 am]