1718182 (Refugee)

[2021] AATA 1542

1718182 (Refugee) [2021] AATA 1542 (15 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718182

COUNTRY OF REFERENCE:                   Libya

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 March 2021 at 2:25 pm (WA time)

DATE OF WRITTEN RECORD:                3 May 2021

PLACE OF DECISION:  Perth

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

Statement made on 03 May 2021 at 1:02pm

CATCHWORDS
REFUGEE – protection visa – Libya – particular social group – imputed political opinion – holder of scholarship from former government and participant in protest activities in Australia – threatened during return travel – relatives killed – particular vulnerabilities of children – westernisation and social dislocation – not reasonable to modify behaviour – delay in applying for protection visa – country information on general insecurity and violence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 5LA, 36
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 decision made by a delegate of the Minister for Immigration and Border Protection on 11 August 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 15 March 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this decision record is a corrected transcript of the oral reasons for decision, which were delivered to the applicants in person at the time of delivery of the decision.

   DECISION

4. The Tribunal remits the decision 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  [2.23 PM]

   INTRODUCTION

5. The criteria for a Protection visa are set out in s.36 of the Act and in Sch.2 to the Migration Regulations 1994.  To qualify for a visa an applicant must either be a person in respect of whom Australia has protection obligations, under the refugee criterion (at s.36(2)(a)), or on complementary protection grounds (at s.36(2)(aa) of the Act).

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 assessment prepared by the Department of Foreign Affairs and Trade (DFAT) in accordance with Ministerial Direction No.84.

   COUNTRY INFORMATION

7. As discussed in a previous decision of this Tribunal, differently constituted,[1] 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.[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).

8. 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).

9. 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).

10. This corresponds with the more recent DFAT Report for Libya (14 December 2018)[5] and relevant UK Home Office Country Policy and Information notes.[6]

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

    [6]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).

11. 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.’ 

    [7] (accessed 8 November 2019).

12. I also note that submissions from the applicant’s agent contained alternative sources of country information which are entirely consistent with the foregoing country information that I have referred to.

    PROCEDURAL BACKGROUND.

13. The applicants appeared before the Tribunal on two occasions to give evidence and present arguments.  Firstly, on 26 November 2020 and finally on 15 March 2021. 

14. The applicants were represented in this application by a registered migration agent.  All hearings were held with the assistance of interpreters, fluent in English and Arabic standard languages. 

    APPLICATION HISTORY

15. Applicant 1 lodged the application for the grant of a Protection visa on 30 May 2016, on behalf of the family unit.  The application was refused by a delegate of the Minister in a decision dated 11 August 2017.

16. Applicants 1, 2 and 3 arrived in Australia [in] February 2011, travelling on a [Student] visa that had been granted to Applicant 1.  Applicants 4 and 5 were subsequently born in Australia and have spent their entire lives in Australia. 

17. The family unit’s travel to Australia was funded by a scholarship from the former Gaddafi Government which is referred to colloquially in the relevant country information as a ‘Gaddafi Scholarship’.  A further visa of the same class to study in Australia was reissued to Applicant 1.

18. Evidence before the Tribunal indicates that the applicants have at all times complied with the conditions imposed on the relevant visas issued to them. 

19. Since arriving in Australia the applicants lawfully returned to Libya on one occasion, from August 2011 to January 2012.  At the time the family unit comprised Applicants 1, 2 and 3.

    IDENTITY

20. Applicants 1 and 2 are married.  Applicants 3, 4, and 5 are children born to this relationship.  All applicants are citizens of Libya which is also the receiving country for the purposes of the refugee and complementary protection assessments.  I am satisfied that all applicants form a single family unit. 

21. 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.

    HEARINGS

22. At the first hearing I told you what documents I had in my possession.  You confirmed that I had all the relevant material before me.  Also at the start of the hearing, I confirmed with you the summary of your claims for protection which are contained in the delegate’s record of the decision at Part 4 as follows:

    ·     He will be killed by militia or the authorities due to being identified as a Gaddafi supporter, as shown through his protest activities in Australia in March 2011, where the solid green flag of the Gaddafi regime was shown.  His actions, along with other protestors, were shown on [social media] posted on [in] March 2011. 

    ·     He fears that he and his immediate family may be targeted by militia due to residing overseas or killed due to the lack of security in the country and generalised violence. 

    ·     When he returned to Libya for almost five monts from 2011 to 2012 he was threatened by militia on two occasions at checkpoints, the first because he did not have identity documents with him and the second due to being identified as a Misrata resident due to the number plates of the car he was driving. 

    ·     In 2014 his eldest brother, [Mr A], was arrested by Misrata militia and held for four months due to his links with Gaddafi supporters and being a supporter himself.  On release he continued his Gaddafist activities.

    ·     [In] April 2016 [Mr A] was killed in a car accident after fleeing through a checkpoint near [location].  The applicant believes it was due to his Gaddafist activities. 

    ·     The uncle of Applicant 2 was killed during the civil war because he had facial features similar to the Gaddafi family.

23. You confirmed that this was an accurate and fair summary of your claims for protection and I noted that the delegate’s findings suggested that they had problems with the delay in seeking protection and your return trip to Libya in 2011-2012.  The delegate also had difficulties with the credibility of your claims for protection.

24. I pointed out to you the delegate found that you were not owed protection in Australia under either s.36(2)(a) or s.36(2)(aa) of the Act. 

25. At the second hearing I was able to discover more about your personal circumstances in Australia, what life in Australia has been like for your children, particularly your sons who have been born in Australia.  You pointed out that your youngest children do not have an adequate level of Arabic in order to be understood in Libya, and that while both yourselves and your children are observant Muslims, the way that you would choose to live your life and practise your religion in Australia is not how you would be able to live it without fear of harm on return to Libya.

26. Applicant 1 pointed out that he did not wish his family to be constrained to live their life the way they would be forced to on return to Libya.  Applicant 2’s evidence was that she would not be free to live her life and pursue her objectives for her own life on her own terms in a way that she would find acceptable on return to Libya, and that being an independently minded person, she would feel the need to speak out against this.

27. It was the evidence of both Applicant 1 and Applicant 2 that there would be no way for the children to live day to day without drawing adverse attention to themselves by religious extremists in Libya on return.

    FINDINGS

28. With respect to the delegate’s decision record in the first instance I note in passing that those findings appear to have been based largely on a perceived delay on the part of Applicant 1 in seeking protection in Australia and finding that the applicants did not have a sufficient profile in Libya to cause them to come to adverse attention by any actors of harm in that country based on the country information that was available to them in 2017. 

29. It is of some concern that the delegate’s decision fails to adequately consider the particular vulnerabilities of the children.  Specifically, with reference to Applicants 4 and 5, both of whom are children who have never previously lived in Libya and who are yet to come into maturity.

30. In addition, the potential imputed status of the family as becoming westernised during their years in Australia does not appear to have had much consideration in the decision of the delegate.  I note that on return the applicants would inevitably be socially dislocated within Libya on arrival and that it would be difficult for them to avoid any form of harm from perceived actors of harm.  Such networks of support which might be available to them and safe accommodation in Libya would be tenuous at best.  Their own families in that country do not have security of tenure of the sort that one would normally expect.  All of this would likely increase the particular vulnerabilities of the family in the period immediately following their return to that country.  I note the particular vulnerabilities of the children in this regard, specifically in the period immediately following their return to Libya.

31. I have considered the applicants’ circumstances and I have also had the opportunity to consider more details and more recent country information when assessing the potential seriousness of any harm that might be faced by the applicants if they were to return immediately to Libya for the purposes of s.5J(5) of the Act.

32. Based on the evidence and the available country information that I have referred to above, I find there is a real chance that the applicants would face serious harm for present purposes in Libya.  In making this finding I note, in particular, the reference in DFAT’s assessment of the overall dire security situation throughout the country; the Australian Government’s official travel advice about the country; and the United Kingdom Government’s advice relating to generalised violence in that country.

33. I also find 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 all members of a particular social group, namely, recipients of Gaddafi scholarships who are western educated and who are conscientiously opposed to the religious and political views enforced by the present militias who have effective control of the majority of that country.  Collectively, I refer to this as the ‘particular social group’.

34. 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 agents relates to one of the reasons contained in 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 or ad hoc basis by lawless armed thugs or extremist groups and not under a legitimate legal system for the purposes of s.5LA(2) of the Act.

35. 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 moderate their behaviour.  However, I note that this does not apply to something which is fundamental to a person’s identity.  In the context of what’s reasonable under the provision I note that the well-founded fear of persecution cannot be regarded as being restricted to a single part of the receiving country if relocating carries with it a need to avoid persecution by living discreetly or otherwise being ‘invisible’.

1. In this respect, I note the evidence that you have given to me at the hearings, which I believe to be credible and sincere, that you would find it unacceptable to conform to the religious practises and views of the controlling militias in Libya now or in the reasonably foreseeable future.  It would not be reasonable or possible for the applicants to modify their behaviour so as to avoid offending parties controlling significant areas of the country or to otherwise hide their membership of the particular social group, being innate or immutable characteristics of group members that are also shared by the applicants.

2. In addition to the most recent DFAT reports for Libya which demonstrate that the overall security situation in that country is dire, UNHCR reports I have had access to indicate that there are many instances of random violence, the planting of land mines, a shortage of access to shelter and food throughout the country etc.  Even against the background of such dire circumstances I am satisfied that these applicants would face systematic indiscriminatory harm if returned to that country.

3. As I have found above, the harm these applicants would face on return would be serious harm for the purposes of the Act.  Although it’s not necessary for present purposes, I again note for completeness that there are additional factors which are applicable to the particular vulnerabilities of the children in the family unit, with special reference to Applicants 4 and 5.  These are children who have never previously lived in Libya, and who have not come into maturity.  In addition to the imputed status of the family having become westernised during their years in Australia, the special vulnerabilities of Applicants 3, 4, and 5, take their individual risk profiles well above the requisite threshold of harm, required by s.36(2)(a) of the Act.

   CONCLUSION

4. I have considered each of the integers of your claims for protection, individually and then cumulatively.  Taking my findings of fact, together with relevant country information surveyed above, I am satisfied that your evidence is both credible and consistent with important aspects of 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. 

5. This fear is for the essential and significant reason of grounds articulated in s.5J(1)(a) of the Act, namely the applicants are members of a particular social group, being beneficiaries of a Gaddafi scholarship, who are western educated, and who are conscientiously opposed to the religious and political views enforced by the militias that presently have effective control of the majority of Libya, which are innate or immutable characteristics of members of that group that are also shared by each of the members of the family unit.

6. I am satisfied that the real chance of significant physical harassment and significant physical ill-treatment is discriminatory in the relevant sense and relates to all areas of Libya now or in the reasonably foreseeable future. 

7. I further find pursuant to s.5J(3)(b) of the Act that it would be impractical and unreasonable to require the applicants to modify their behaviour to reduce the real chance of significant physical harassment and significant physical ill-treatment due to their membership of the particular social group referred to above.

8. Based on these findings I also find that the applicants would not be able to secure effective protection in Libya for the purposes of s.5LA of the Act.  For the reasons I have given above I find that all applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

   DECISION

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

   END OF ORAL DECISION  [4.10 PM]