1712502 (Refugee)

This matter concerned an application for a protection visa by a Libyan national and his family. The primary applicant, Applicant One, claimed he feared persecution in Libya due to his past support of the former Gaddafi regime, evidenced by his name being published as a supporter, which would lead him to be perceived as an enemy of the current regime and associated militias. The core dispute revolved around whether the applicants engaged Australia's protection obligations due to a well-founded fear of persecution for reasons of membership in a particular social group, or alternatively, whether they satisfied the requirements for a protection visa on complementary grounds.

The Tribunal was required to determine if the applicants had a well-founded fear of persecution in Libya based on their membership in a particular social group. Specifically, the Tribunal considered the claims of Applicants Three and Five, who were the applicant's daughters. The Tribunal also had to assess whether Applicants One and Two, the parents, qualified for a protection visa as members of the same family unit as Applicants Three and Five, should the latter be found to meet the criteria. Furthermore, the Tribunal considered the complementary protection criterion under s.36(2)(aa) of the Migration Act, which applies if there are substantial grounds for believing that removal would result in a real risk of significant harm.

The Tribunal found that Applicants Three and Five, due to their young age and their upbringing in Australia, perceived themselves as Westernised and possessed only a basic understanding of Arabic. They expressed a genuine fear of harm, including kidnapping, enslavement, sexual violence, intimidation, harassment, and potential killing, should they be returned to Libya, attributing this risk to their age, sex, and Westernisation. The Tribunal accepted that these claims were not previously raised by Applicants Three and Five due to their young age at the time of the delegate's review. The Tribunal also found that Applicants One and Two were in a genuine and continuing married relationship and thus constituted the same family unit as Applicants Three and Five. Consequently, the Tribunal remitted the matter for reconsideration, directing that Applicants Three and Five satisfy s.36(2)(a) of the Act, and that Applicants One and Two satisfy s.36(2)(b)(i) of the Act as members of the same family unit. The Tribunal affirmed the decision regarding Applicant Four, finding her to be an Australian citizen.