1718182 (Refugee)

The Administrative Appeals Tribunal considered the case of five Libyan applicants seeking a protection visa. The applicants, a family unit, had arrived in Australia in 2011 on a scholarship from the former Gaddafi government. The initial application for a protection visa was refused by a delegate of the Minister. The applicants had returned to Libya for a period between 2011 and 2012, during which they reported being threatened by militia. Further concerns were raised regarding the arrest and subsequent death of the eldest brother of Applicant 1, believed to be linked to his Gaddafi support, and the killing of the uncle of Applicant 2 during the civil war. Applicants 4 and 5 were born in Australia and had spent their entire lives there.

The Tribunal was required to determine whether the applicants met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which concerns Australia's protection obligations under the refugee convention. This involved assessing whether the applicants had a well-founded fear of persecution for reasons of membership of a particular social group or imputed political opinion, and whether they would face harm amounting to persecution upon return to Libya. The Tribunal also considered the particular vulnerabilities of the children, the reasonableness of modifying behaviour, and the impact of the delay in lodging the protection visa application.

The Tribunal's reasoning acknowledged that country information supported the applicants' claims regarding the deteriorating security situation in Libya following the overthrow of the Gaddafi regime. Reports indicated a significant decline in domestic security after the applicants' last visit, with widespread civil conflict, the emergence of rival parliaments, and the breakdown of central state authority. The Tribunal noted that while there may have been an interim period of civil society growth that could have allowed for safe return prior to early 2014, the situation had significantly worsened thereafter. The Tribunal found that the applicants' past association with the Gaddafi government, evidenced by their scholarship and protest activities, could lead to them being identified as supporters and thus targeted by militia or authorities. The Tribunal also considered the specific threats experienced during their return to Libya and the deaths of relatives, which contributed to a well-founded fear of harm. The Tribunal concluded that the applicants' circumstances, including the children's westernisation and social dislocation, meant it was not reasonable to expect them to modify their behaviour to avoid persecution.

The Tribunal remitted the decision under review, directing that the applicants satisfy section 36(2)(a) of the *Migration Act 1958* (Cth).