1705053 (Refugee)

[2019] AATA 6878

1705053 (Refugee) [2019] AATA 6878 (17 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705053

COUNTRY OF REFERENCE:                   Libya

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         17 December 2019 at 2:36 pm (WA time)

DATE OF WRITTEN RECORD:                26 June 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 26 June 2020 at 9:25am

CATCHWORDS
REFUGEE – protection visa – Libya – imputed political opinion – recipients of Gaddafi scholarships – family members’ links to participants in civil war – generalised violence – religious and socio-political views – youngest child’s health – no adequate state protection – decision under review remitted

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

Migration Regulations 1984 (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 dependants.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 28 February 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (the Act).

2. At the hearing on 17 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 17 December 2019.

   DECISION

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

   Dr Colin Huntly
   Member

   
   

   -Corrected Transcript-

   ORAL DECISION OF MEMBER HUNTLY  [2.00 pm]

   Introduction

5. 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 complementary protection grounds. 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 assessment prepared by DFAT in accordance with Ministerial Direction No 84.

   Procedural Background

6. The applicants appeared before the Tribunal on two occasions.  Firstly, on 12 November 2019, and again on 17 December 2019, to give evidence and present arguments. 

7. The applicants were represented in this application by a registered migration agent, and the applicants’ registered migration agent appeared by telephone.  Both hearings were held with the assistance of suitable interpreters. 

8. The applicants applied for the grant of protection visa on 24 June 2015.  That application was refused by a delegate of the Minister in a decision dated 28 February 2017.  The applicants then applied to this Tribunal for a review of that decision. 

   Migration History

9. Applicants 1, 2 (who are married) and 3 (being the eldest child of this relationship), arrived in Australia [in] December 2010, travelling on a [student] visa.  Applicants 4 and 5 were born to this relationship in Australia subsequently. 

10. The student visa on which the applicants entered Australia was reissued [in] March 2012.  This permitted Applicant 1 to complete his [studies] in [Discipline 1] at [a] University.  Applicant 1 was sponsored in these studies by means of a Libyan Government scholarship, referred to in the literature and colloquially in Libya as ‘Gaddafi scholarships’.  The applicants returned to Libya [in] January 2013, and returned to Australia, travelling on the same visa, [in] May 2013. 

11. All applicants claim to be citizens of Libya.  I have reviewed the relevant evidence contained in the Departmental file, including their Libyan passports.  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 refugee and complementary protection assessments.  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.

    Hearings

    First Hearing

12. At the first hearing I told you what documents that I had in my possession, and you confirmed then that I had all of the relevant material before me.  Also, at the start of the first 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: 

    ·     Applicant 1 fears persecution on the grounds of his imputed political position;

    ·     Applicant 1 claims that in 2011 he participated in the March 2011 rally in Perth in support of the uprising in Libya. 

    ·     Applicant 1 claims that his brother and father were persecuted under Gaddafi for their anti-Gaddafi views.  He also claims his brothers were members of [Militia 1], opposing General Haftar.  Applicant 1 claims that one of his brothers, [Mr A], was [a government official] in the interim government, and a member of [Organisation 1].  He also claims that [Mr A] organised logistics between [City] forces, which were fighting General Haftar’s army. 

    ·     Applicant 1 fears that his family will suffer harm (kidnapped and killed), at the hands of General Haftar’s army and due to generalised violence in Libya. 

    ·     Applicant 1 fears that his youngest son, who was born prematurely, would not have an adequate level of medical care in Libya.  He fears general insecurity in Libya, and that his children will suffer as a result of destruction, by war, of infrastructure in Libya.

13. I asked you if these were a fair and accurate summary of your claims for protection, and you said; ‘Yes’: that you were concerned that the situation in Libya now is much worse under Haftar, and the militias which have taken control of the country. 

14. I noted 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 these claims, given that the applicants had returned to Libya in 2013.  For those reasons the delegate found that you were not owed protection in Australia under either ss.36(2)(a) or 36(2)(aa) of the Act.

    Second Hearing

15. At the second hearing, I took the opportunity of taking your evidence relating to your current fears of harm in Libya.  I note that both Applicant 1 and Applicant 2 provided me with credible and compelling evidence relating to their political and religious views (particularly with respect to the rights and treatment of women in Libya); and the potential vulnerability of their children to serious and significant harm at the hands of religious zealots in that country due to their children’s general unfamiliarity with the mores and norms of that country, and their susceptibility to forced recruitment into militia activity and to their particular vulnerability as minors and as women. 

16. I find that the views about matters of religion and political opinions expressed by Applicant 1 and Applicant 2 are sincerely held.  I further accept their evidence that both Applicant 1 and Applicant 2 would feel forced to comply with religious and political views that they do not hold to be true, in order to protect their vulnerable children. 

    Country Information

17. As discussed in a previous decision of this Tribunal, differently constituted,[1] country information supports the applicants’ 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, <  (accessed 8 November 2019).

18. 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, < (accessed 8 November 2019).

19. 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, < (accessed 8 November 2019).

20. 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 pp.26–29.

21. 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).

22. I also note a number of submissions on the applicants’ Departmental file relating to country information, which are generally consistent with the foregoing country information I have separately identified here.

    Findings

23. For the purposes of s.5J(5) of the Act, and on the basis of the country information I have surveyed above, I find that there is a real chance that the applicants would face serious harm in Libya, particularly referring 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 most current advice relating to generalised violence in that country. 

24. I further find that all the applicants would face a particularised 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 scholarships, and who are conscientiously opposed to the religious and political views enforced by the present militias that are effectively in control of the majority of Libya, being innate and immutable attributes of members of the group and that are shared by the applicants.

25. I note that harm from non-State agents may amount to persecution under 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.  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 this does not apply to something which is fundamental to a person’s identity. 

26. In the context of what is reasonable under this provision I note that a well-founded fear of persecution cannot be regarded as being restricted to a single part of a receiving country, and if relocating carries with it the need to avoid persecution, by living discreetly or otherwise being invisible, the reason for this is self-evident.  It would not be reasonable for the applicants to modify their behaviour to avoid offending parties controlling significant areas of Libya, or to otherwise hide their membership of a particular social group, being innate or immutable characteristics of group members, that are also shared by the applicants, in order to avoid offending their oppressors.  To do so, as observed by the High Court of Australia, would be inimitable to the objects of the Refugee Convention on which the Australian statutory provisions are based.

27. The most recent DFAT report for Libya shows that the overall security situation in the country is dire.  The UNHRC reports that I have had access to indicate that there are many instances of violence, the sowing of landmines, and a shortage of access to shelter and food throughout the country.  Even in the context of dire circumstances of general applications such as these, the applicants would face particularised systematic and discriminatory harm.  As discussed above, if returned, this would amount to serious harm for the purposes of the Act. 

28. Having considered your risk profile and the actual and implied integers of your claims for protection, individually and cumulatively, it is clear that your individual risk profiles, considered cumulatively, rise well above the requisite threshold of serious harm that would attract Australia’s protection obligations under s.36(2)(a) of the Act.

    Conclusions

29. Having considered each of the integers of your claims for protection individually and then cumulatively, taking due account of my findings of fact discussed above, together with the relevant country information I have surveyed, I am satisfied that your evidence is credible and materially consistent with important aspects of the country information.  On this basis I find that you have a well-founded fear of persecution in Libya, now and in the reasonably foreseeable future. 

1. 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, 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 of the applicants.  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.

2. As discussed above I find that pursuant to s.5J(3)(b) of the Act it would be unreasonable and impracticable 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, and for this reason I further find that you would not be able to secure effective State protection for the purposes of s.5LA of the Act.  Accordingly, I find that the applicants are all persons in respect of whom Australia has protection obligations.

   Decision

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

   END OF ORAL DECISION  [2.36 PM]