1712502 (Refugee)

[2021] AATA 3500

1712502 (Refugee) [2021] AATA 3500 (30 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712502

COUNTRY OF REFERENCE:                   Libya

MEMBER:Paul Noonan

DATE:30 July 2021

PLACE OF DECISION:  Melbourne

DECISIONS

DECISION ONE:  

The Tribunal remits the matter for reconsideration with the following directions:

(i)that Applicants Three and Five satisfy s.36(2)(a) of the Migration Act; and

(ii)that Applicants One and Two satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the applicants named at (i) above.

Statement made on 30 July 2021 at 09:41am

DECISION TWO:

The Tribunal affirms the decision under review with respect to Applicant Four on the basis that she is an Australian citizen.

Statement made on 30 July 2021 at 09:41am

CATCHWORDS
REFUGEE – protection visa – Libya – arrival as Gaddafi scholarship holder – seen as supporter of Gaddafi – social group – applicant’s daughters – young Westernised females – unfamiliar with language and culture – risk of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 91R, 91S, 499
Migration Regulations 1994, Schedule 2, r 1.12

CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. Applicants [Applicant One/the applicant], [Applicant Two] and [Applicant 3] who was born in Libya on [date] (Applicant Three), all claim to be citizens of Libya and applied for the visas on 21 July 2014 and the delegate refused to grant the visas on 2 June 2017.

3. Applicants One, Two and Three arrived in Australia [in] May 2008 travelling on a Student (Class TU) Subclass 570 visa. 

4. 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’.  Evidence before the Tribunal indicates that the applicants have at all times, complied with the relevant visas issued to them.

5. [Applicant Four] was born in Australia on [date] and has subsequently been granted Australian [in] December 2019. The Tribunal has sighted her Australian citizenship papers and her Australian passport, valid from [2020] to [2025], a copy of which is retained on the Tribunal file.

6. As noted at hearing Applicant Four is an Australian citizen and as such there is no basis in law to grant the applicant a protection visa and the decision in respect to Applicant Four must therefore be affirmed.

7. [In] March 2012 Applicants One, Two, Three and Four departed Australia and returned to Libya. They subsequently re-entered Australia [in] May 2012.

8. [Applicant Five], was born in Australia on [date]. A child born to a non-citizen after a primary visa application is made, but before it is decided by the delegate is taken to have applied for a visa of the same class as their parent at the time they were born. Accordingly, the applicant is taken to have applied for a protection visa on 1 July 2015. Accordingly, the codified refugee provisions apply to Applicant Five’s application for review of the delegate’s subsequent refusal to grant the visa on 2 June 2017.  

9. The Tribunal notes that Applicant One and Applicant Two attended a Protection visa interview with a delegate of the Minister for Immigration and Citizenship on 4 July 2016.

10. The applicants appeared before the Tribunal on 24 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

11. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

    RELEVANT LAW

12. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion – Applicants One, Two and Three

13. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

14. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

15. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

16. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

17. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

18. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

19. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition −  race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

20. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

21. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

22. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

23. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

24. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

25. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Refugee criterion – Applicant Five

26. As noted above Applicant Five applied for her visa on 1 July 2015 and as such she is subject to the following codified refugee provisions.

27. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

28. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

29. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

30. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)−(6) and ss.5K−LA, which are extracted in the attachment to this decision.

31. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

32. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Country of reference

33. The Tribunal accepts, on the basis of their passports retained on the Tribunal record and other evidence that Applicants One, Two, Three, and Five are citizens of Libya and it has assessed their claims against that country.

    Member of the same family unit

34. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the spouse and children of the applicant (who have not turned 18).

35. Spouse is defined in s.5F of the Act and the Tribunal has considered this section of the Act for the purposes of r.1.12. Firstly, the Tribunal is satisfied that Applicant One and Two are in a married relationship that is valid for the purposes of the Act. The Tribunal finds this to be the case, on the basis of a marriage contract dated [2005], contained within the Department papers. The Tribunal also notes that Applicants One and Two have resided together for many years and have four children all under the age of 18 who live with them both on a permanent basis. There is no material before the Tribunal which may cast doubt on the existence of their genuine spousal relationship and the delegate also took no issue with the relationship. As such the Tribunal finds that Applicants One and Two have a mutual commitment to a shared life as a married couple to the exclusion of all others and the relationship between them is genuine and continuing and that they live together.

36. The Tribunal is also satisfied that Applicants Three and Five are the applicant’s children, on the basis of their birth certificates, for these purposes, as contained within the Department papers and which the delegate also took no issue with.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Decision summary

37. The issue in this case is whether the applicants engage Australia’s protection obligations because one or all of them have a well-founded fear of persecution in Libya for the essential or significant reason of their membership of a particular social group.  In the alternative, whether one or all of the applicants satisfy the requirements for a protection visa in Australia on complementary grounds.

38. For the following reasons, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration with the direction that Applicants Three and Five satisfy s.36(2)(a) of the Act because of their particular vulnerabilities and that Applicants One and Two satisfy s.36(2)(b)(i) of the Act, on the basis of membership of the same family unit as Applicants Three and Five.

    The hearing

39. At the commencement of the hearing the Tribunal advised the applicants and their representative what documents it had before it as follows:

·     Written Submissions of the Applicant by International Migration Support dated [June] 2021.

·     [Translated doc] Corpse Repatriation Permit to repatriate the body of [name deleted] from the Embassy of Libya in Tunis dated [October] 2019

·     [Translated doc] State of Libya, The Supreme Council of Judiciary, letter to Lawyer regarding complaint submitted by [name deleted], dated [December] 2020.

·     [Translated doc] Lawyer’s Legal Correspondence of [name deleted] Public Prosecution of First Instance, dated 1 November 2020.

·     Four (4) photographs which includes the descriptions: (undated)

o    (1) Photo of the Applicant father;

o    (2) Photo of the Applicant with a senior man close to Gaddafi;

o    (3) Photo with Former president Gaddafi; and

o    (4) Another photo of the Applicant with Gaddafi.

·     Certificate of Australian Citizenship of [Applicant 4] born [date], dated [March] 2019.

· Australian Passport of [Applicant 4] dated [2020].

·     AAT Statement by the [Applicant 1] dated 16 June 2021.

·     [Translated scan] Military card of Applicant’s father.

·     Multiple scans of an ID Card, translation of a military card, numerous blurry photographs (four of which are noted above)

·     Written Submissions of the Applicant by International Migration Support dated [June] 2021, which includes further scans of ID cards, translated Committee Membership ID and Position Assessment statements

·     Two handwritten, unsigned, undated statements (from daughters?) regarding life in Australia and why they can’t return to Libya.

·     Letters of Support regarding [Applicant 3] (daughter):

o    Letter from [an Australian official] dated [June] 2020;

o    Personal reference for [Applicant 3] from [the] Principal at [a] College dated [June] 2021;

o    Screenshot of [Applicant 3] stating she was selected [to] represent a student group, undated;

o    Certificate of Appreciate for [Applicant 3] on [a task], dated 2020.

·     [Instagram] screenshots in 2020 (x2) depicting a meeting. [Applicant 3] is in both.

Passport Scans

· [Passport] Passport scan of [name deleted] date of [date], issued [2015].

· [Passport] Passport scan of [name deleted] date of birth [date] issued [2015].

· [Passport] Passport scan of [name deleted] date of birth [date] issued [2014].

· [Passport] Passport scan of [name deleted] date of birth [date], issued [2016].

·     Single photograph of an individual circled next former Colonel M. Gaddafi. Undated. It is the same photograph as the above (see photograph (3) and (4)) listed.

1. The applicant’s representative confirmed that the Tribunal had all the relevant material before it.

2. Also, at the start of the hearing the Tribunal confirmed with Applicant One and his representative the summary of the claims for protection contained at pages 6 and 7 of the delegate’s record of decision, which in summary are that he fears returning to Libya because of his support of the former regime. His name has been published as a supporter of the former regime and he will be seen as an enemy of the current regime and militias.

3. The Tribunal discussed in great detail Applicant One’s claims during the hearing and had regard to these claims. However, it is not necessary for the Tribunal to set out its findings with respect to Applicant One’s claims as it has found that Applicants Three and Five are entitled to protection based upon their claims raised at the hearing. The Tribunal accepts that Applicants Three and Four were not able to raise these claims previously due to their young age at the time of the review undertaken by the delegate.

4. The Tribunal invited Applicants Three and Four to speak to the Tribunal and asked them if they held any personal concerns with respect to returning to Libya. Both applicants gave emotional evidence with respect to their fear of harm should they be required to return to Libya. In particular they noted that they and Applicant Five have spent their lives in Australia and perceive themselves to be Westernised and with only a basic understanding of Arabic. In summary they fear that they would be immediately targeted for persecution in Libya, in the form of kidnapping, enslavement, sexual violence, intimidation, harassment and potentially killing for reason of their age, sex and Westernisation. 

   Country Information

5. The DFAT Country Information Report for Libya dated 14 December 2018 contains security assessments[1] and the circumstances facing women and children[2] in that country that are less current than, but not inconsistent with, that published by the UK Home Office.  The UK Home Office publications relevantly state that:[3]

   2.4.2 In ZMM, the Upper Tribunal (UT) held that: ‘The violence in Libya has reached such a high level that substantial grounds are shown for believing that a returning civilian would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to a threat to his life or person.’ (para 94)

   [1] At (15)–(17).

   [2] At (29)–(32).

   [3] UK Home Office, Country Policy and Information Note Libya: Actual or perceived supporters of former President Gaddafi, (Ver 3.0) April 2019 at (7).

6. And:[4]

   2.4.8 While the socio-economic and humanitarian conditions remain poor and may have been exacerbated by the restrictions imposed as a result of the Covid19 pandemic, the economy continues to function and some basic services such as healthcare, education and water – although significantly damaged or restricted – remain available. In general, conditions in Libya do not reach the threshold that would make removal a breach of Article 3 ECHR / Articles 15 (b) of the Qualification Directive. However, the humanitarian situation is variable across the country and members of vulnerable groups, such as women, children or IDPs in areas where humanitarian conditions are poor and humanitarian aid is less accessible, may face a risk of serious harm.

   [4] UK Home Office, Country Policy and Information Note Libya: Security and humanitarian situation, (Ver 4.0) September 2020 at (9).

7. And:[5]

   2.3.2 In the country guidance case of AT and Others (Article 15c; risk categories) (CG) [2014] UKUT 318 (IAC) (14 July 2014), heard 18-22 November 2013, the Upper Tribunal found that:

   ‘Whilst Libya is a male-dominated society and there is evidence of discrimination and violence against women and poor recognition of women’s rights, being female does not per se establish a risk on return. However, taking into account all the circumstances, including a woman’s age, health, level of education and economic status, one or more of the following characteristics or factors are likely, depending on the circumstances, to be significant in relation to the assessment of risk on return for a woman:

   ‘a) African ethnicity;

   ‘b) Being a victim of sexual violence, including having been raped by soldiers loyal to the Qadhafi regime or by other combatants;

   ‘c) Being a woman accused or suspected of sexual misdemeanours or offences against family honour.’ (para 215 (10))

   [5] UK Home Office, Country Policy and Information Note Libya: Women, (Ver 2.0) January 2018 at (5).

8. The US Department of State’s 2020 Country Report on Human Rights Practices[6] refers to abductions being carried out in Libya by “GNA-aligned groups, LNA-aligned groups, and other armed groups” and that “Migrants, refugees, and other foreign nationals were especially vulnerable to kidnapping”. Further, with respect to the situation for young women the Report finds that:

   Migrant women and girls remained particularly vulnerable to rape and sexual violence, including forced prostitution and sexual exploitation in conditions amounting to sexual slavery. There were reports of egregious acts of sexual violence against women and girls in government and extralegal detention facilities (see section 2.d., Protection of Refugees).

   According to civil society organizations, there was widespread harassment and intimidation of women by armed groups, including harassment and arbitrary detention based on accusations of “un-Islamic” behavior. There were reports armed groups harassed women traveling without a male “guardian” and that men and women socializing in public venues were asked by armed groups to produce marriage certificates to verify their relationship.

   [6] US Department of State 2020 Country Reports on Human Rights Practices: Libya, Libya − United States Department of State (accessed 20 July 2021).

9. More generally the Report finds that in 2020:

   Significant human rights issues included: arbitrary and unlawful killings by various armed groups, including some aligned with the Government of National Accord and the Libyan National Army; forced disappearances; torture perpetrated by armed groups on all sides; harsh and life-threatening conditions in prison and detention facilities, some of which were outside government control; arbitrary arrest and detention; political prisoners or detainees; unlawful interference with privacy, often by nonstate actors; serious abuses in internal conflict, including killing of civilians and the worst forms of child labor, such as the recruitment or use of children in conflict; serious restrictions on free expression and the press, including violence against journalists and criminalization of political expression; substantial interference with freedom of association; refoulement of refugees and asylum seekers; widespread corruption; lack of accountability for violence against women; trafficking in persons; threats of violence against ethnic minorities and foreigners; criminalization of same-sex sexual orientation; significant restrictions on workers’ freedom of association, including limits on collective bargaining and the right to strike; and forced labor.

10. In addition to the above the Tribunal notes that the UNHCR – The UN Refugee Agency found in its September 2018[7] report that:

    Women and girls reportedly continue to be subjected to severe discrimination in law and practice, as well as to various forms of violence and ill-treatment at the hands of both state and non-state actors, including in particular gender-based violence. There is a reported lack of state protection for women in these situations. Armed groups reportedly subject women to widespread harassment and intimidation, unlawful killings, enforced disappearances, and sexual abuse, targeting in particular women accused of not complying with strict interpretations of religious and societal gender norms, women’s rights defenders and women active in public life. Women are reportedly also at risk of being detained on account of family affiliations, for reason of “moral crimes”, or for the purpose of prisoner exchanges; they are regularly held in facilities without female guards and have reportedly been subjected to torture and other forms of ill-treatment, including sexual violence. Women’s freedom of movement is reportedly restricted as a result of the security situation, and, in some instances, only permitted with a male guardian.

    Children are reportedly disproportionally affected by the ongoing conflict and violence in Libya. They are reportedly at risk of sexual and gender-based violence; domestic violence; recruitment by armed groups; abduction, unlawful detention, as well as torture and other forms of ill-treatment, including on account of their own or their family members’ alleged or actual association with other parties to the conflict; and killing as a result of the indiscriminate use of weapons in residential areas, in crossfire and from explosive remnants of war. Access to education has reportedly been impaired by conflict and instability, and schools have been the target for attacks. Many children are reportedly in need of mental health support given the conflict’s devastating impact.

    [7] UNHCR Position on Returns to Libya (Update II) September 2018, Refworld | UNHCR Position on Returns to Libya − Update II (accessed 20 July 2021).

11. Further in its September 2020 report into the position of Libya as a place of safety the UNHCR found as follows[8]:

    The ongoing conflict and political impasse have reportedly led to a further deterioration of humanitarian conditions across all sectors in Libya. The conflict has also resulted in the damage to and destruction of homes, hospitals, schools, water and electricity systems, and other critical infrastructure.

    In June 2020, it was estimated that over one million persons were in need of life-saving humanitarian assistance and protection, including 400,000 internally displaced Libyans and 654,000 asylum-seekers, refugees and migrants. The number of people in need has increased due to the economic effects of the COVID-19 pandemic.

    [8] UNHCR – The UN Refugee Agency, September 2020 Report: Position on the designation of Libya as a safe third country. Refworld | UNHCR Position on the Designations of Libya as a Safe Third Country and as a Place of Safety for the Purpose of Disembarkation Following Rescue at Sea (accessed 20 July 2021).

12. Further that:

    Asylum-seekers, refugees and migrants, including children, are at risk of being subjected to widespread and systematic human rights violations and abuses at the hands of smugglers, traffickers, armed groups, militias and criminal gangs acting with impunity. These violations and abuses reportedly include unlawful deprivation of liberty and arbitrary detention; torture and other forms of ill-treatment; rape and other forms of sexual violence; abduction for ransom and other forms of extortion; forced labour; and unlawful killing. Women and girls, but also men and boys, are subjected to rape, forced prostitution and other forms of sexual violence.

    FINDINGS

13. The Tribunal finds that Applicants Three and Five are young Westernised females. The correct tests for considering if an applicant is a member of a particular social group was set out in Applicant S v MIMA (2004) 217 CLR 387 (and Applicant A v MIEA (1997) 190 CLR 225) with respect to Applicant Three and in s.5L of the Act with respect to Applicant Five. With respect to Applicant Three the Tribunal is satisfied that she shares particular social characteristics of a group defined as young Westernised females and that this group is cognisable within Libyan society that unifies them. The Tribunal finds that country information clearly reflects that such a group is perceived as such by people within Libyan society as reflected by the clear adverse actions commonly perpetrated against young women and Westernised or non-traditional Islamic people. Further, with respect to Applicant Five and s.5L, the Tribunal is satisfied that her being a young Westernised female is a characteristic shared by each member of the group, that she shares these characteristics and the characteristic is an innate or immutable characteristic. Further that the characteristic is not a fear of persecution.

14. Applicant Three is coming into maturity and has lived the vast majority of her life outside Libya apart from as an infant. Applicant Five has lived her entire life outside Libya. Their knowledge and understanding of local Libyan culture and language is limited and they would be placed into a situation in support of their returnee parents where current country information clearly reflects they would be individuals at risk of persecution which involves serious harm to them in the form of discriminatory and systematic harassment, rape, kidnapping and abduction for reason of them being members of a particular social group, that is young Westernised females. The Tribunal finds, on the basis of the country information before it, that there is currently an extremely poor situation in Libya for members of this particular social group. The Tribunal finds that Applicants Three and Five face a real chance of persecution and that the real chance of persecution relates to all areas of Libya as per the first limb of the relocation test under the Convention and s.5J(1)(c) with respect to the codified refugee provisions.

15. The Tribunal finds that Applicant Three and Five’s membership of the particular social group of ‘young Westernised females’ is the essential and significant reason for the persecution as per s.91R(1)(a) with respect to Applicant Three and s.5J(4)(a) with respect to Applicant Five. Further that the persecution involves systematic and discriminatory conduct as per s.91R(1)(c) with respect to Applicant Three and s.5J(4)(c) with respect to Applicant Five.

16. The Tribunal must also consider the issue of state protection and whether they are unable or unwilling to avail themselves of the protection of the Libyan authorities. Under the Convention applicable to Applicant Three the test for state protection is set out in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal considers that the country information reflects a complete lack of an appropriate criminal law or the provision of a reasonably effective police force or reasonably impartial judicial system and as such there is not an appropriate level of protection available to Applicant Three. Accordingly, her fear of persecution is well-founded. With respect to Applicant Five the Tribunal must consider the issue of state protection under s.5J(2) and 5LA(1) and (2). The Tribunal is satisfied that there is no non-state actor that Applicant Five could access protection from and further that the State does not offer an appropriate criminal law, a reasonably effective police force and an impartial judicial system. Accordingly, her fear of persecution is also well-founded.

17. Finally, the Tribunal must consider whether the exception contained in s.5J(3) applies to Applicant Five that is whether she could take reasonable steps to modify her behaviour so as to avoid persecution. The Tribunal finds that Applicant Five’s fear of persecution is because of her membership of a particular social group being ‘young Westernised females’. Her age, sexuality and upbringing are innate and immutable characteristics and as such she falls within the exception to s.5J(3) set out at s.5(J)(3)(b).

    SUMMARY

18. For the reasons given above the Tribunal is satisfied that Applicants Three and Five are persons in respect of whom Australia has protection obligations and they satisfy the criterion set out in s.36(2)(a) of the Act.

19. The Tribunal is satisfied that the exception in s.36(3) does not apply to Applicants Three or Five in that there is no evidence to indicate that they have a right to enter and reside in any other country.

20. The Tribunal is satisfied that Applicants One and Two are of the same family unit as Applicants Three and Five for the purposes of s.36(2)(b)(i) of the Act. As such, the fate of their applications depends on the outcome of Applicants Three and Five’s applications. It follows that Applicants One and Two will be entitled to a protection visa, provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISIONS

    DECISION ONE:  

    The Tribunal remits the matter for reconsideration with the following directions:

    (i)that Applicants Three and Five satisfy s.36(2)(a) of the Migration Act; and

    (ii)that Applicants One and Two satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the applicants named at (i) above.

    DECISION TWO:

    The Tribunal affirms the decision under review with respect to Applicant Four on the basis that she is an Australian citizen.

    Paul Noonan

    
    

    Member